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  • WisBar News
    June 19, 2018

    No Taking: Visibility of Highway Billboard Not a Protected Property Interest

    Joe Forward

    Wisconsin Supreme Court

    June 19, 2018 – The Wisconsin Supreme Court has ruled (4-3) that the City of Madison’s construction of a pedestrian bridge over a major highway, blocking visibility of an existing billboard, was not a taking of property requiring just compensation.

    Adams Outdoor Advertising Limited Partnership argued that a taking occurred because the city’s bridge deprived the company of all economically beneficial use of its billboard space. The city argued that unobstructed visibility of property from a public road is not a property right protected by the takings clauses of federal and state constitutions.

    In Adams Outdoor Advertising Limited Partnership v. City of Madison, 2018 WI 70 (June 19, 2018), a Supreme Court majority ruled that “a right to visibility of private property from a public road is not a cognizable right giving rise to a protected property interest.”

    Justice Rebecca Bradley dissented, joined by Chief Justice Patience Roggensack and Justice Daniel Kelly, concluding the city “deprived Adams Outdoor of all economically beneficial use of its permit by constructing a bridge that obliterated the permit’s value.”

    Bridge Blocks Visibility

    Adams Outdoor bought the parcel of land on which two billboards sat for $200,000 in 2007. The billboards are nonconforming; they cannot be modified by height or location.

    The city built the bridge in 2013, under an agreement with the state transportation department. The bridge crosses the busy highway known as the “Beltline.” Since then, Adams Outdoor asserted that it cannot sell advertising space on the west-facing side.

    Adams Outdoors’ appraiser said the property was worth $1.46 million before the bridge was constructed, and $720,000 after it was erected. The city disputed the appraisal, noting Adams Outdoor made no improvements since purchasing the land 2007.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    In any event, Adams argued that the city took its private property for public use and owed just compensation, which is required under the Fifth Amendment to the U.S. Constitution (the Takings Clause) and Art. I, Section 13, of the Wisconsin Constitution.

    The lower courts sided with the city and the Supreme Court majority affirmed, concluding a “right to be seen” is not a property interest requiring just compensation.

    “[W]e determine that the essence of Adams’ asserted property interest is based on a right to visibility,” wrote Justice Ann Walsh Bradley for the 4-3 majority, noting that owners of private property abutting public roads should know that things can change.

    That is, roadways can be expanded, relocated, or modified to include signage or in this case, a pedestrian bridge.

    “Property owners are on notice that such changes may alter or obstruct the view of their private property from the public road,” Justice A.W. Bradley wrote.

    “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.”

    The majority noted that numerous jurisdictions reject a right to visibility from a public road. “Adams fails to cite any jurisdiction recognizing a right to visibility of private property from a public road in the absence of a physical taking,” A.W. Bradley wrote.

    Dissent

    Justice R. Bradley’s dissent viewed the city’s pedestrian bridge as a “constructive taking” of the west-facing billboard permit, and just compensation was required.

    She noted that Adams Outdoors’ property has two billboards, one facing west and one facing east. But the city treats each billboard as separate property requiring separate permits. Thus, Adams Outdoor was required to pay separate fees for each permit.

    “[T]he majority ignores the essential fact that the west-facing billboard permit itself constitutes individual real property and the correct denominator in the takings analysis,” R. Bradley wrote. “Consequently, the majority reaches a legally erroneous outcome.”

    “The west-facing billboard permit is separate and distinct from both the billboard structure and the land the structure inhabits,” she wrote.

    If the west-facing billboard permit is separate, the bridge deprives Adams Outdoor from realizing any economic benefit from the permit, R. Bradley noted, because a city ordinance prohibits Adams Outdoor from altering the height of location of the billboard.

    “As a result, Adams Outdoor is left with a small, half-acre of irregularly-shaped land adjoining the Beltline Highway, on which sits one rentable sign, the value of which is half what it was when the land enjoyed two rentable signs,” Justice R. Bradley wrote.

    “The only economically beneficial or productive use of the west-facing billboard permit is renting the west-facing billboard to advertisers. Advertisers will not want to rent the west-facing billboard, rendering its corresponding permit useless.”

    R. Bradley said the majority allows an unconstitutional taking without just compensation, “thereby threatening the freedom of all private property owners in Wisconsin.”



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