Oct. 31, 2013 – Residents of the Village of Brown Deer recently lost their appeal to get compensated for street improvement projects they say will impact their properties, while a state appeals court upheld the constitutionality of the “unrecorded highways” statute.
Brown Deer obtained state funding to improve five streets in the “historic” district of the village, according to court documents, and notified 67 property owners that the village was invoking its eminent domain power to acquire some of their land for this purpose.
Under federal and state constitutions, the government cannot take private land for public use – known as eminent domain – without paying just compensation.
While the village estimated that private property acquisitions for improved sidewalks and other amenities would be minimal and just compensation nominal, the various property owners affected made just compensation estimates of between $4,236 and $26,496.
The residents were ready to argue that they owned any land adjacent to the street pavement, including sidewalks, and just compensation would be required to take it.
However, the village changed its course.
In a letter, the village told property owners that eminent domain (and just compensation) wasn’t necessary because the village already had title to the disputed land. That is, the village said the land proposed to be improved was already part of a “public highway.”
The historic district roads were not recorded as “public highways,” but Wis. Stat. section 82.31(2)(a) states that “any unrecorded highway that has been worked as a public highway for 10 years or more is a public highway and is presumed to be 66 feet wide.”
The “public highway” label basically gives municipalities a 66-foot-wide permanent easement. To win the case, the residents had to rebut the presumption that the unrecorded highways at issue in Brown Deer’s historic district were 66 feet wide.
With respect to three properties, the circuit court ruled that the residents successfully rebutted the presumption that Brown Deer’s “public highway” title extended the full 66 feet because buildings on those parcels clearly encroached upon the disputed areas.
However, the circuit court ruled that other property owners could not rebut that presumption. Those property owners appealed, essentially arguing that if the presumption is rebutted as to one property owner, it extends to all property owners on that street. But a three-judge panel for the District I Wisconsin Court of Appeals disagreed in Village of Brown Deer v. Balistrerri, 2013AP748 (Oct. 29, 2013).
“[T]he trial court specifically found that Brown Deer had been using and maintaining the full presumptive sixty-six-foot width of the road, other than where the three structures encroached,” wrote Judge Ralph Adam Fine. “The Residents have not shown how this finding is clearly erroneous.”
The appeals court also rejected the argument that the 66-foot-wide presumption does not apply to improvements other than roadway surfaces used by vehicles, like sidewalks. And the panel downed a constitutional challenge to the statute itself.
The property owners relied on two Minnesota cases to argue that Wisconsin’s “unrecorded highways” statute allows the taking of private property without just compensation in violation of the U.S. and Wisconsin constitutions.
The panel said the Minnesota cases “are not helpful to our analysis” and the residents “have not proved the statute to be unconstitutional beyond a reasonable doubt.”
