You might think that a statute the legislature adopted to allow more recovery than under constitutional takings law, that requires the DOT to pay landowners whose lands abut a change-of-grade project for the value of "any damages to said lands occasioned by such change of grade," would include the situation where the DOT converted a property owner's at-grade driveway into a rampless bridge. The DOT refused to include offramps as the owner requested, and as a result, the business tanked and the value of the property dropped precipitously.
If so, you'd be wrong according to the majority of the Wisconsin Supreme Court in United America, LLC v. Wisconsin Dep't of Transportation, No. 2018AP2383 (May 18, 2021).
There, the court concluded that because the impact was not to "the lands" because the change of grade project did not actually touch or damage "the land" of the owner, only the owner's property (the business). The court held that the plain meaning of "land" as used in the statute does not encompass damage to the owner's business (which is merely "property"), and that if the legislature had intended to alter the common law rule of no consequential damages resulting from a change of access, it would have used the term "property" and not "land."
One Justice dissented, arguing that the terms "any damages" and "to the lands" should be read together, and the trial court's award of $528.500 should be upheld:
¶23 REBECCA GRASSL BRADLEY, J. (dissenting). "The fundamental maxims of a free government seem to require; that the rights of personal liberty and private property, should be held sacred." Wilkinson v. Leland, 27 U.S. 627, 634 (1829) (Story, J.) (emphasis added). Ignoring the plain text of Wis. Stat. § 32.18, the majority delivers a troubling blow to the statutory rights of Wisconsin's property owners. According to the majority, if the Department of Transportation (DOT) causes a change of grade on the state's highways, abutting landowners are left without any recourse or compensation when DOT's actions eviscerate the value of their property. The majority's interpretation misreads § 32.18 and erases the statutory rights of landowners in the process. Properly interpreted, when DOT causes a change of grade that diminishes a landowner's property value on abutting land, § 32.18 allows landowners to collect compensatory damages. Accordingly, United America was entitled to the circuit court's full award of damages. I respectfully dissent.
Dissent at 1.
All we can add is a question: if a landowner whose land is actually touched and damaged by a project can recover under the constitution for a taking or damaging, what, according to the majority's reasoning was the legislature adding by this statute? Nothing, as far as we can tell.
United America, LLC v. Wisconsin Dep't of Transportation, No. 2018AP2383 (Wis. May 18, 2021)
