EXAMPLES OF INJUSTICE Introduction n In defending injustice

EXAMPLES OF INJUSTICE

Introduction n In defending injustice, courts, including SCOTUS AND SCOWIS, have employed an unnecessarily strict construction of the constitutional guarantee of just compensation, stating that the constitutional prohibition on the taking of property without just compensation “does not undertake, . . . to socialize all losses, but only those which result from a taking. ” n U. S. v. Willow River Co. , 324 U. S. 499, 502 (1945); More-Way North Corp. v. State Highway Commission, 44 Wis. 2 d 165, 170 N. W. 2 d 749 (1969).

Introduction (con’t) n n n Did our Founding Fathers intend to limit the taking of property to physical occupation and tolerate government actions that take value and eliminate net worth? Times have changed significantly since most constitutions were enacted; value encompasses a lot more than land area and improvements, but today vehicular access and visibility can make land improvements nearly worthless. When government action decreases the value of your real estate, hasn’t property been “taken”?

ACCESS = Value n n n Unlike when the Wisconsin Constitution was enacted…vehicular access is one of the most important rights in commercial property. This has been acknowledged by SCOWIS: “Although [access rights are] subject to reasonable regulations in the public interest, it is a property right, the taking of which requires compensation. ” National Auto Truckstops, Inc. v. DOT, 2003 WI 95, par. 19, 263 Wis. 2 d 649, 665 N. W. 2 d 198. BUT, “deprivation of access to a highway does not constitute a taking of property [requiring compensation] provided reasonable access remains. ” Id.

J&E Investments n n Property: 2130 N. Mayfair Road, Wauwatosa, WI Brief Facts: n n J&E Bought the property in 2006 and invested a significant amount of money in improvements, constructing a mixed use building with retail on the first floor and office space on the second floor. The building was built and oriented based on the DOT’s approval of access directly from Mayfair Road to the building’s parking lot. BEFORE

J&E Investments (con’t) n n n DOT, as part of the Zoo Interchange project, closed J&E’s access and revoked its permit…WITHOUT COMPENSATION. AFTER Access to Property was limited to the back alley, which is intended to serve residential properties. Not appropriate for commercial access, too narrow for delivery trucks. Access is hard to locate for convenience oriented retail customers. Change puts property at significant competitive disadvantage with surrounding properties that have direct access to Mayfair Road.

J&E Investments (con’t) n J&E’s ONLY Remaining Access:

J&E Investments (con’t) n n n There is no question the State has the power to close J&E’s access for public safety, etc. How much value is lost? Does it matter? Current jurisprudence holds that because the remaining access is “reasonable, ” J&E is due absolutely no compensation for the significant value lost, unless the property has lost substantially all of its value.

JK Lee Black Belt Academy n 1851 E. Moreland Blvd. , Waukesha, WI

JK Lee (con’t) n The BEFORE Condition:

JK Lee (con’t) n n As part of DOT’s HWY 18 Rehabilitation Project, the State selected Lee’s access directly from HWY 18 for closure. The proposed AFTER Condition:

JK Lee (con’t) n n n DOT has only proposed closing JK Lee’s Access and not otherwise “taking” or acquiring any other property or other rights therein. IF Lee’s access were a right acquired by permit, under WI current law, DOT could close this access without paying any compensation as long as there is “reasonable” remaining access. It does not matter if such closure reduces the market value of JK Lee’s property by 25%, 50%, or even 75%. . . no just compensation is due.

JK Lee (con’t) n n BUT, unlike most access to STHs, JK Lee’s access is pursuant to a Quit Claim Deed from DOT says the deed is actually a permit. Circuit Court Ruled, it is a Deed and eminent domain proceedings, including payment of JC must be used to take JK Lee’s access. The Circuit Court decision is on appeal.

What about loss of business? ? NO COMPENSATION FOR YOU!!!! Edwardo’s Pizza, Mayfair / Bluemound, Wauwatosa, WI No more Pizza for you!!!

Conclusion n n Many states have solved the problem of an under inclusive definition of a “taking” by simply adding an explicit requirement for just compensation when government “damages, ” but does not “take” property. Wisconsin can avoid further injustice, like these examples, and many others, by simply joining the majority of states that have decided to fully protect private property rights.

Contact Information Nicholas J. Boerke, von Briesen & Roper, s. c. 411 E. Wisconsin Ave. , Suite 1000 Milwaukee, WI, 53202 Direct: 414 -287 -1460 Email: nboerke@vonbriesen. com von. Briesen. com