2010 WI App 139
court of appeals of
published opinion
Case No.: |
2009AP1615 |
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Complete Title of Case: |
†Petition for review filed |
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Plaintiffs-Appellants,† v. Wisconsin Department of Transportation, Defendant-Respondent. |
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Opinion Filed: |
September 8, 2010 |
Submitted on Briefs: |
August 11, 2010 |
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JUDGES: |
Brown, C.J., Neubauer, P.J., and |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiffs-appellants, the cause was
submitted on the briefs of Erik Samuel Olsen of Samuel Phillip Law Offices, LLC of |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was submitted on the briefs of Abigail C. Potts and Kathleen M. Batha, assistant attorney generals, and J.B. Van Hollen, attorney general. |
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2010 WI App 139
COURT OF APPEALS DECISION DATED AND FILED September 8, 2010 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Plaintiffs-Appellants, v. Wisconsin Department of Transportation, Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
Before Brown, C.J., Neubauer, P.J., and
¶1 BROWN, C.J. Lawrence and Carol Kauer are trying to fight the condemnation of a portion of their land for a road by claiming that the proposed road is unsafe. Specifically, they contend that the DOT’s condemnation of their property is a gross abuse of discretion because it is based—according to their expert—on unsafe plans. The DOT, meanwhile, asserts that the road was designed with safety in mind by its team of engineers. The case comes to us as an appeal of summary judgment in favor of the DOT.[1] Because we do not believe that a landowner challenge to condemnation is the place to debate the relative safety of alternative road designs, we affirm. We also find in favor of the DOT on an alleged jurisdictional issue.
¶2 The relevant facts of this case are not in dispute. The DOT plans to construct a roundabout with
a curved entrance that encroaches on part of the Kauers’ property. The affected portion of the land has been
condemned for the purpose of building the road.
In an effort to prevent the condemnation of their land, the Kauers
brought suit under Wis. Stat. § 32.05(5),[2]
which allows owners to contest the right of the condemnor to condemn property
“for any reason other than that the amount of compensation offered is
inadequate.”
¶3 Specifically, the Kauers challenge the necessity of the
condemnation of their land. Although Wis. Stat. § 32.05(5) allows owners
to bring a wide range of cases, case law has made it clear that the necessity
of a condemnation will be upheld absent a showing of fraud, bad faith, or a
gross abuse of discretion. See Falkner
v. Northern States Power Co., 75
¶4 Based
on the standard outlined in case law, the Kauers contend that the DOT’s use of
an allegedly unsafe road design constitutes utter disregard for the necessity
of use of their land and is therefore a gross abuse of discretion. In support of their claim, the Kauers retained
an expert who stated that a curved approach to a roundabout is inappropriate
and unsafe for, among other things, slippery road conditions, which the Kauers
point out are common during
¶5 In response to the Kauers’ claim, the DOT submitted affidavits of a professional engineer who works for the DOT. She stated that the road design was consistent with the DOT’s Facilities Development Manual, which reflects “sound engineering practice.” The DOT moved for dismissal and the trial court granted the DOT’s motion. The Kauers appeal. On appeal, the DOT asserts, in essence, that the Kauers do not have standing to debate safety with the DOT in the context of a condemnation procedure.[3]
¶6 The
standard of review of successful summary judgment motions is well known. Summary judgments are reviewed de novo,
applying the same methodology as the circuit court. Green Spring Farms v. Kersten, 136
¶7 Our review of the record did reveal one factual dispute: whether the road design chosen by the DOT was “safe.” However, the existence of a factual dispute does not defeat summary judgment unless the facts disputed are material. See id. We do not believe that the facts underlying this dispute are material because the Kauers’ expert cannot, as a matter of law, prevail in a debate over safety. Therefore, we agree with the trial court that the DOT is entitled to summary judgment.
¶8 We acknowledge that we could find no
¶9 In addition to the general deference afforded to the legislature
and its delegated agencies in condemnation actions, Wisconsin courts have
explicitly held that “[t]he determination of necessity will be upheld if there
is any reasonable ground to support
it.” Watson, 95
¶10 The immense discretion given to the legislature in eminent
domain cases reflects an understanding that neither judges nor juries are in
the best position to decide issues such as the most appropriate design for a
road. See Ashwaubenon, 17
¶11 We do not hold that safety can never be an issue in a Wis.
Stat. § 32.05(5) proceeding.
We find it important that in this case, the DOT claimed that its design
was created with safety in mind and supported its claim with an expert’s
affidavit. We can imagine scenarios
where safety could be relevant to the
issue of necessity. For example, if the
DOT’s road design was obviously unsafe,[5]
that might be evidence that there was utter disregard for the necessity of the
use of land. In such a case, however,
the problem would be that the DOT had committed a gross abuse of discretion. Here, a DOT engineer has stated that a team
of experts designed the road within the requirements of its operating manual
and “sound engineering practice.” That
shows a “reasonable ground” to support the proposed road, which is all that the
law requires. See Watson, 95
¶12 We also note that there are other means by which landowners, or
indeed, any citizen may be able to
challenge the safety of the DOT’s road design.
In its brief, the DOT suggests two ways this could be done: through a contested hearing on the safety or
human health aspects of a proposed government action, see Wis. Stat. § 227.42,
or by establishing standing to challenge the government action judicially under
Wis. Stat. § 227.52. According to case law, judicial review under
§ 227.52 includes “health and safety interests” that are caused by a
change in the physical environment.
¶13 As mentioned in ¶1, supra,
there is one remaining issue in this case: the Kauers’ claim that there is a
jurisdictional defect in the condemnation action because they were not given
certain information about their rights, in contravention of Wis. Stat. § 32.05(2a). Their complaint alleges that they were not
“properly provide[d]” a pamphlet entitled “The Rights of Landowners under
Wisconsin Eminent Domain Law,” and were “confused” because of it. Interestingly, they also admit that they did receive half of it. The DOT argues that even if the Kauers had
not received any of the pamphlet, there would be no jurisdictional defect. We do not deem this claim worthy of much
discussion, primarily because the Kauers were so clearly not prejudiced by
it—they admit that they received half of it, and they retained counsel without
requesting the other half.
¶14 This court has noted that all procedural steps which have been
found to be jurisdictional defects in condemnation proceedings have two
features in common.
¶15 It is true that the pamphlets were required by Wis. Stat. § 32.05(2a), which states,“[b]efore attempting to negotiate … the condemnor shall provide the owner or his or her representative with copies of the applicable pamphlets.” (Emphasis added.) The Kauers argue that the word “shall” in the statute satisfies the second Bassinger characteristic—that the statute expressly or impliedly deny power to the condemnor to act if the step is not met. We disagree.
¶16 Our supreme court addressed a similar statutory requirement in Herro
v. Natural Resources Board, 53
The statute here under consideration makes no provisions for any consequences resulting from failure to timely make and file the award. Furthermore, in this case, we are unable to see how the appellant was in any way prejudiced by the late filing of the award. While the late filing of an award by a condemnation commission is not to be condoned, it does not necessarily operate to deprive the condemnation commission of jurisdiction.
¶17 The Herro holding makes it clear that
the word “shall,” without more, does not necessarily deny the condemnor the
right to act.[7] Wisconsin
Stat. § 32.05(2a), like the statute in Herro, does not provide for any consequences if its
requirements are not met. Here, as in Herro, the Kauers were not
prejudiced.
¶18 When
the legislature deems a procedural step to be a jurisdictional prerequisite, it
will say so. For example, Wis. Stat. § 32.05(4) explicitly
states that notice of the jurisdictional offer “is a jurisdictional requisite
to a taking by condemnation.” There is
no similar statement by the legislature with regard to § 32.05(2a). We think this is telling. We are confident that, even if the Kauers
only received half the pamphlet, as they claim, there was no jurisdictional
defect. We uphold the trial court’s grant of summary judgment.
By the Court.—Judgment affirmed.
[1] Initially, the DOT moved to dismiss for failure to state a claim upon which relief may be granted, and the trial court’s final “order” states that it is granting the DOT’s motion and dismissing the complaint with prejudice. However, since parties on both sides submitted briefs with attached affidavits, and since the trial court reviewed that information and referenced it in its decision, and even referred to the proceeding as a summary judgment proceeding, we are treating the order as a grant of summary judgment. See Wis. Stat. § 802.06(3); Converting/Biophile Labs., Inc. v. Ludlow Composites Corp., 2006 WI App 187, ¶2, 296 Wis. 2d 273, 722 N.W.2d 633 (“When, on a motion to dismiss, parties present matters outside the pleadings, the motion should be processed as one for summary judgment.”).
[2] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] In their initial briefs, the parties did not directly address the issue of standing to debate safety in Wis. Stat. § 32.05(5) proceedings. Pursuant to an order dated April 6, 2010, both parties provided supplemental briefs on the issue.
[4] No one disputes that the DOT in this case is acting as the legislature’s delegate. See Wis. Stat. § 84.09(2).
[5] The example of an obviously unsafe road design that we came up with was a road that leads to the edge of a cliff for no apparent reason.
[6] The relevant part of Wis. Stat. § 32.08(6)(b) (1969) reads, “Within 10 days after the conclusion of such hearing the commission shall make a written award specifying therein the property taken and the compensation.” (Emphasis added.)
[7] The
court in Herro v. Natural Resources Board, 53