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COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 8, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0501
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
WILLIAM H. MITTON,
Plaintiff-Appellant,
v.
WISCONSIN DEPARTMENT
OF TRANSPORTATION,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Shawano County:
EARL W. SCHMIDT, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. William Mitton and his sister, Susan Petru (the
Mittons), appeal a summary judgment dismissing their action against the
Wisconsin Department of Transportation in which they challenged the necessity
of condemning their land for highway relocation. To overturn the DOT's determination of necessity, the Mittons had
to show fraud, bad faith or gross abuse of discretion or that there was no
reasonable ground to support DOT's finding of necessity. See Falkner v. Northern States
Power, 75 Wis.2d 116, 132, 248 N.W.2d 885, 894 (1977). Because the record establishes a reasonable
basis for DOT's finding of necessity and the Mittons have failed to establish a
factual basis for their allegation of bad faith, we affirm the judgment.[1]
The DOT is constructing
a bypass highway on state Highway 29 around the south side of the City of
Shawano. After considering other
alternatives, the DOT condemned 3.45 acres of the Mittons' property for the
highway right-of-way. The department
considered four alternative routes, the north, the near south route, the
revised near south route, and the far south route. It selected the revised near south route resulting in
condemnation of the Mittons' property.
The department gave
reasonable grounds for selecting the revised near south alternative. It considered the damage to wetlands posed
by each of the alternatives, the expense, traffic patterns and the potential
needs of the city to expand. This court
must sustain the DOT's necessity determination if reasonable minds could arrive
at the same conclusion. Ashwaubenon
v. State Highway Comm'n, 17 Wis.2d 120, 131, 115 N.W.2d 498, 504
(1962). Reasonable minds could conclude
that the revised near south alternative optimized the various factors DOT
considered. While the north route would
have taken less wetlands, it would have cost $8 million more. The near south alternative and far south
alternative would have damaged more wetlands.
It is the department's function, not the court's, to balance these
competing interests.
The Mittons accuse the
department of selecting their land for the sole purpose of acquiring the
historical sites on the property which is rich in archeological deposits. They contend that the question of the
department's motivation is a material issue of fact precluding summary
judgment. The department's supporting
papers establish a legitimate basis for its decision. Therefore, the Mittons must present affidavits or other proof of
bad faith. See Krezinski
v. Hay, 77 Wis.2d 569, 573, 253 N.W.2d 522, 524 (1977). A party opposing summary judgment cannot
rest on mere allegations. Board
of Regents v. Mussallem, 94 Wis.2d 657, 673-74, 289 N.W.2d 801, 809
(1980). The Mittons presented no direct
proof of bad faith and their allegation that the department selected their land
for the purpose of acquiring its historical sites cannot be reasonably inferred
from the evidence.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.