Wisconsin Supreme Court Rejects
Public Highway Visibility Takings Claim
By Daniel Olson, Assistant Legal Counsel, League of Wisconsin Municipalities
The billboard company, Adams Outdoor Advertising, purchased a small parcel of land adjacent to a state highway located in the city in 2007 that contained one structure, a 2-sided billboard; one side faced west and the other east. The billboard is a nonconforming structure and cannot be altered.
The city built a pedestrian bridge across the highway in 2013, under an agreement with the state transportation department. The bridge obstructed public viewing of the west-facing side of the billboard from the highway.
Adams Outdoor claimed it could not sell advertising space on the west-facing side of the billboard due to the bridge-obstructed view. It sued the city and argued that it took its property without compensation contrary to the Fifth Amendment of the U.S. Constitution (the Takings Clause) and Art. I, Section 13, of the Wisconsin Constitution because the bridge deprived it of all economically beneficial use of its west-facing billboard space.
The city denied a property taking had occurred. It argued that unobstructed visibility of property from a public highway is not a property right protected by the takings clause of either the federal or state constitution.
The lower courts agreed with the city and Adams appealed. The Wisconsin Supreme Court affirmed the lower court decisions and rejected the Adams Outdoor takings claim.
“[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. The majority, reaffirming much earlier decisions of the Court and agreeing with arguments presented by the city in its brief and the League of Wisconsin Municipalities in its amicus brief, concluded that a “right to be seen” is not a constitutionally protected property interest requiring just compensation.
The Court explained that public highways are subject to change and are expanded, relocated, or modified for public benefit all the time. “Property owners are on notice that such changes may alter or obstruct the view of their private property from the public road.” The majority thus stated, “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 also noted that a general property right to visibility from a public road does not exist in any other jurisdiction. “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.”
The 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.” It thus held that the City of Madison’s construction of a pedestrian bridge over a major highway which obstructed visibility of an existing billboard, was not a taking of property requiring just compensation.
Justice Rebecca Bradley dissented, joined by Chief Justice Patience Roggensack and Justice Daniel Kelly. They focused on the billboard permit issued by the city even though Adams Outdoor did not assert a property interest claim in the permit in its brief or at oral argument. The dissenters nonetheless concluded the city “deprived Adams Outdoor of all economically beneficial use of its permit by constructing a bridge that obliterated the permit’s value.” They considered the pedestrian bridge obstruction as a “constructive taking” of the west-facing billboard permit, and just compensation was required.
Read the Court's decision as a pdf
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