EQK Bridgeview Plaza, Inc. v. State of Wisconsin, Department of Transportation

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
February 24, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP646 Cir. Ct. No. 2019CV491

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

EQK BRIDGEVIEW PLAZA, INC.,

PETITIONER-APPELLANT,

V.

STATE OF WISCONSIN, DEPARTMENT OF TRANSPORTATION,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for La Crosse County:
ELLIOTT M. LEVINE, Judge. Affirmed.

Before Kloppenburg, Graham, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP646

¶1 PER CURIAM. EQK Bridgeview Plaza, Inc., (EQK) owns
commercial property that is located along U.S. Highway 53 in the City of
La Crosse. As part of a highway improvement project for Highway 53, the
Wisconsin Department of Transportation (DOT) took, through eminent domain
procedures, a portion of EQK’s property. Also as part of the project, DOT closed
two driveways from EQK’s property directly to Highway 53. After completion of
the project, EQK has three access points via two side streets to Highway 53. DOT
compensated EQK for the property it took as part of the project but not for the
closure of EQK’s two driveways to Highway 53.

¶2 EQK filed an inverse condemnation petition asking the circuit court
to determine that DOT’s closure of EQK’s two driveways constitutes a taking
under the United States and Wisconsin Constitutions. The petition asked the court
to order that DOT provide compensation for the closure of the driveways and that
this action be consolidated with the separate condemnation action that EQK
brought concerning DOT’s compensation for the property it took unrelated to the
closure of the driveways.

¶3 The parties each moved for summary judgment. The circuit court
granted DOT’s motion and denied EQK’s motion, concluding that the closure of
the two driveways does not constitute a taking entitling EQK to compensation.
EQK appeals, arguing that DOT’s closure of the two driveways is a taking
entitling EQK to compensation because DOT took EQK’s “vested rights” to the
driveways in the absence of any valid police power to do so or, alternatively,
without properly exercising its police power to do so. We reject EQK’s argument
because the record establishes that EQK had no “vested access rights” in the two
driveways, based on the unambiguous language in a 1956 award of damages and
following this court’s recently issued opinion, which we deem persuasive, in a

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case concerning a claim for compensation for the closure of a driveway in a
similar factual context. See DEKK Prop. Dev., LLC v. DOT, No. 2020AP2146
(Wis. Ct. App. Jan. 27, 2022) (not recommended for publication).1 Accordingly,
we affirm.

BACKGROUND

¶4 The parties do not dispute the following material facts.

¶5 EQK owns commercial property comprising a shopping plaza that
abuts U.S. Highway 53 on the property’s northwest side. In 2016, DOT undertook
a highway improvement project along Highway 53. As part of the 2016 project,
DOT took, through eminent domain procedures, a portion of EQK’s property.
DOT awarded compensation for the property it took, and EQK challenged the
amount of compensation in an action separate from this action.

¶6 Also as part of the 2016 project, DOT closed two driveways that
connected EQK’s property directly to Highway 53. Specifically, DOT closed the
driveways by removing the curb cut to the two driveways and constructing new
curbs and gutters. After completion of the 2016 project, EQK has three access
points from its property to Highway 53. Two of the access points are via pre-

1
We note that DOT submitted to this court a notice of additional authority regarding our
decision in DEKK Prop. Dev., LLC v. DOT, No. 2020AP2146, unpublished slip op. at ¶¶25-27
(WI App Jan. 27, 2022), that did not follow the rule of appellate procedure governing such
notices under WIS. STAT. § 809.19(10) (2019-20), a failure highlighted by EQK in its response.
However, independently of DOT’s notice, we have deemed DEKK persuasive. See WIS. STAT.
RULE 809.23(3)(b) (permitting the citation of authored, unpublished opinions issued after July 1,
2009, for their persuasive value).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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existing driveways to a side street on the south side of the property that connects
to Highway 53. The third access point was newly created as part of the 2016
project and is via a new driveway to a side street on the northeast side of the
property; the side street connects with State Highway 35 at a lighted traffic signal
intersection, and Highway 35 connects with Highway 53 to the west.2 The new
intersection of the side street and Highway 35 also includes a dedicated right-turn
lane for traffic traveling along Highway 35 from the direction of Highway 53 and
into EQK’s property. The third access point in particular provides safer and
quicker access between EQK’s property and Highway 53 than did the two closed
driveways. DOT did not compensate EQK for the closure of the two driveways to
Highway 53.

¶7 In connection with the 2016 project, DOT recorded, in the office of
the county’s register of deeds, a transportation project plat signed by a
professional land surveyor and showing the land interests that DOT acquired as
part of the 2016 project. The plat reflects that EQK’s access to Highway 53 was
restricted by “previous acquisition/control.” The following history of EQK’s
property vis-à-vis Highway 53 is pertinent to this reference to “previous
acquisition/control.”

¶8 In 1956, the State Highway Commission3 issued an award of
damages by which it purchased “all existing, future, or potential common law or

2
For ease of visualization, the three now-existing access points and the two closed
driveways all extend from different parts of the EQK property’s parking lot.
3
The parties do not dispute that the State Highway Commission is the predecessor
agency to DOT. For convenience, we will refer to DOT when referencing the earlier projects and
their associated awards of damages and driveway permits.

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statutory easements or rights of access between any traveled way of
[Highway 53]” and the property now owned by EQK.

¶9 The 1956 award of damages further provided:

Excepted from this award of damages is the right of
access to [U.S. Highway 53] from said abutting lands on
the southeast side of the highway by means of one existing
private driveway … and by means of one proposed private
driveway to be constructed at some future date by the
awardee subject to the regulations of [DOT].

¶10 Thus, the 1956 award of damages referenced two driveways, one
existing and one proposed. DOT issued a driveway permit for the proposed
driveway in 1961.

¶11 In 1964, DOT issued another award of damages separate from the
1956 award. This award similarly referred to the right of access allowed by the
1956 award by means of two driveways to Highway 53 subject to DOT
regulations. Specifically, the 1964 award of damages stated that the allowance of
the “right of access … by means of two access points on the southeast side of
[Highway 53]” was via driveways “[p]ursuant to provisions of Section 86.07(2)
Statutes.” See WIS. STAT. § 86.07(2) (1963) (regulations concerning highway
access).

¶12 In 1970, DOT issued a driveway permit relocating the “existing
private driveway” from the EQK property to Highway 53, referenced in the 1956
award of damages, further south along the EQK property. Thus, as of 1970, DOT
had issued permits for each of two driveways referenced in the 1956 and 1964
awards of damages.

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¶13 Following DOT’s closure of those two driveways as part of the 2016
project, EQK filed an inverse condemnation petition alleging that the closure of
the two driveways took EQK’s “deeded access rights” for which DOT must
compensate EQK. The petition alleged that the 1956 award of damages created
two “deeded access points,” which DOT closed as part of the 2016 project. The
petition alleged that DOT claimed that it closed the two access points under WIS.
STAT. §§ 84.09 and 86.07(2)(a), but that § 84.09 does not involve DOT’s exercise
of police power and DOT did not revoke the driveway permits for the two access
points under § 86.07(2)(a). Accordingly, the petition sought compensation for
DOT’s closure of the two driveways and consolidation of this action with the
action EQK filed challenging the amount of compensation DOT paid for the
property that it acquired as part of the 2016 project.

¶14 The parties each moved for summary judgment. Summarizing as
best we can, EQK argued that the 1956 award of damages created “deeded access
rights” that were excluded from DOT’s acquisition in 1956 and which DOT
physically took when DOT closed the two driveways in 2016; that DOT had no
police power to close the two driveways; and, alternatively, that DOT did not
properly invoke its police power. DOT argued that the closure of the driveways
did not constitute a taking when EQK has other points of access; that EQK had no
property right in a specific access point nor any “deeded access rights” pursuant to
the 1956 award of damages, but only a “revocable permitted interest” in a
“permissive driveway connection” that DOT properly closed for safety reasons
pursuant to its police power to control access to its highways; and that EQK
cannot show that DOT physically occupied EQK’s property when the curb cut
removal and new curb installation occurred within DOT’s own right-of-way.

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¶15 The circuit court granted summary judgment in DOT’s favor and
denied EQK’s motion. In its oral ruling, the court concluded that EQK failed to
show a “per se” taking of any right because EQK had only a conditional right to
the two driveways, subject to DOT’s police power “to close access when needed,”
and because EQK has other points of access to Highway 53. The court also
concluded that EQK’s argument that DOT failed to follow the driveway
permitting regulatory scheme did not support a taking claim.

¶16 EQK appeals.

DISCUSSION

¶17 We review summary judgment de novo, using the same
methodology as the circuit court. R.W. Docks & Slips v. State, 2001 WI 73, ¶12,
244 Wis. 2d 497, 628 N.W.2d 781. Summary judgment shall be granted where the
record demonstrates “that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.” WIS. STAT.
§ 802.08(2).

¶18 The United States and Wisconsin Constitutions prohibit the taking of
private property without just compensation. U.S. CONST. amend. V; WIS. CONST.
art. I, § 13. “In order to trigger the ‘just compensation’ clause under either the
Wisconsin Constitution or the U.S. Constitution, there must be a ‘taking’ of
private property for public use.” E-L Enters., Inc. v. Milwaukee Metro.
Sewerage Dist., 2010 WI 58, ¶21, 326 Wis. 2d 82, 785 N.W.2d 409. Under both
Constitutions, two types of governmental conduct can constitute a taking: (1) an
actual physical occupation of private property (referred to as a physical taking); or
(2) a restriction that deprives an owner of all, or substantially all, of the beneficial

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use of his or her property (referred to as a regulatory taking).4 Id., ¶22 (citation
omitted).

¶19 EQK commenced this action under WIS. STAT. § 32.10, alleging that
DOT took EQK’s “driveway rights” without exercising DOT’s condemnation
power and that EQK is entitled to compensation for that taking. See WIS. STAT.
§ 32.10 (“If any property has been occupied by a person possessing the power of
condemnation and if the person has not exercised the power,” the owner may
institute condemnation proceedings.).

¶20 On appeal, EQK largely reiterates the arguments that it made in the
circuit court. Specifically, EQK argues that the 1956 award of damages created
“vested access rights” that were excluded from DOT’s acquisition in 1956 and
which DOT physically took when DOT closed the two driveways in 2016, without
having any police power to do so or, alternatively, without properly invoking its
police power when it failed to follow statutory procedures for revoking driveway
permits.

¶21 As we explain, EQK’s arguments on appeal fail because they are
premised on EQK’s having had “vested access rights” to Highway 53 via the two
driveways that DOT closed, but the record establishes that EQK possessed no
“vested access rights” to Highway 53 via the two driveways for DOT to take.
Rather, the 1956 award of damages unambiguously conveyed to DOT all rights of

4
In the circuit court, EQK asserted only a physical taking. On appeal, EQK at times
indicates that it asserts only a physical taking, but also states that, should we accept its argument
that EQK lacked police power to close the driveways, we should remand the issue of whether the
taking is physical or regulatory. Because we reject EQK’s taking claim regardless of whether it
asserts a physical or regulatory taking for reasons we explain below, EQK’s remand request is
moot.

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access between EQK’s property and Highway 53, and reserved only EQK’s ability
to access the highway via two driveways subject to DOT’s regulatory authority.

¶22 An award of damages conveys property rights to the condemning
authority for a specified amount of compensation. See WIS. STAT. § 32.05(7)(b)
(providing that the award describe the property to be taken, the interest to be
condemned, and the compensation for the taking); Sonday v. Dave Kohel Agency,
Inc., 2006 WI 92, ¶45, 293 Wis. 2d 458, 718 N.W.2d 631 (“In a condemnation
action in Wisconsin, the title to the property is conveyed to the government and
the title vests in that government entity as of the date and time of the recording of
the compensation award.”). For purposes of construing the terms of the award,
DOT in the circuit court likened the award to a contract, and EQK on appeal likens
the award to a deed. Both parties agree that the language of the award, construed
as a contract or a deed, is unambiguous. Therefore, the construction of the award
presents a question of law. See Konneker v. Romano, 2010 WI 65, ¶23, 326
Wis. 2d 268, 785 N.W.2d 432 (“The construction of an unambiguous deed is … a
question of law.”).

¶23 The 1956 award of damages states that, for the improvement of
Highway 53, DOT acquires “all existing, future, or potential common law or
statutory easements or rights of access between” Highway 53 and the property
now owned by EQK. The award also states:

Excepted from this award of damages is the right of
access to said highway from said abutting lands on the
southeast side of the highway by means of one existing
private driveway, the center of which lies southeasterly at
right angles opposite Station 76+96 of the Road Plans on
file with [DOT], and by means of one proposed private
driveway to be constructed at some future date by the
awardee subject to the regulations of [DOT].

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¶24 This court recently construed very similar language in a case in
which the plaintiff sought compensation for DOT’s closure of a driveway to State
Trunk Highway 50 as part of highway improvement project, where DOT
compensated the plaintiff only for the portion of its property that DOT took
through eminent domain procedures, unrelated to the driveway closure. See
DEKK, No. 2020AP2146, ¶1. In that case, DOT had in 1961 acquired by deed
“all existing, future or potential common law or statutory easements or rights of
access between any traveled way of S.T.H. 50, and the … land of the owner … it
abuts upon said highway.” Id., ¶¶7 n.3, 32. The deed also contained the following
driveway reservation:

Except there is reserved the right of access to said
highway by means of one restricted driveway same to be
used only for barber shop purposes for the term of fifteen
years from the date of this conveyance and then to become
a private driveway conforming to the regulations of the
[DOT]. Said driveway to be constructed with its eastern
limits along the east line of the owner’s property line in
conformance with [DOT] policy.

Id., ¶33.

¶25 We interpreted these terms to have conveyed all rights of access
from the property to DOT, and to have reserved a right of access to only one
driveway in a specific location that must conform to DOT regulations. We
clarified, citing WIS. ADMIN. CODE § TRANS 231.03(2) (Nov. 2021), that DOT
acquired “the authority to regulate [plaintiff’s] reserved driveway pursuant to DOT
regulations, including the right to close that driveway if it unduly impairs the

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‘safety, convenience, and utility of the highway.’” 5 Id., ¶34. We determined that
DOT in 1961 took, and paid compensation for, all of the property owner’s rights
of access; and that, in addition, DOT acquired the property owner’s right to apply
for future driveway permits and to be judged on the criteria in DOT regulations,
including DOT’s authority to remove the driveway. Id., ¶37 (citing Narloch v.
DOT, Div. of Highways, Div. II, 115 Wis. 2d 419, 432, 340 N.W.2d 542 (1983)).
We concluded that DOT acquired, and paid compensation for, all rights of access
between the plaintiff’s property and the highway, reserving for the plaintiff only
“restricted” access via a single driveway “subject to limitations and conditions,
including a DOT regulation that authorizes the DOT to close [plaintiff’s] driveway
based on the DOT’s determination regarding safety, convenience, and utility.”
DEKK, No. 2020AP2146, ¶¶39-40.

5
Under WIS. ADMIN. CODE § TRANS 231.01(1) (Nov. 2021), DOT is authorized to issue
permits pursuant to WIS. STAT. § 86.07(2) for driveways between state trunk highways and
abutting property. Under § 86.07, DOT is authorized to regulate driveways to highways
(requiring permits for “mak[ing] any excavation or fill or install[ing] any culvert or mak[ing] any
other alteration in any highway” and authorizing DOT to make regulations “necessary and proper
for the preservation of highways, or for the safety of the public, and to make the granting of any
such permit conditional thereon”). Under § TRANS 231.03(2), “[t]he number of driveways
permitted serving a single property frontage along a state trunk highway shall be the minimum
deemed necessary by the department for reasonable service to the property without undue
impairment of safety, convenience, and utility of the highway.”

By their terms, these regulatory provisions apply to state trunk highways. EQK argues
that Highway 53 is not a controlled access highway, a freeway, or an interstate highway. EQK
does not argue that Highway 53 is not a state trunk highway.

All references to WIS. ADMIN. CODE ch. TRANS 231 are to the November 2021 register
date.

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¶26 We discern no difference that matters between the language
construed in DEKK and the language here.6 Here, as in DEKK, applying the
literal meaning of the words in the 1956 award of damages, we conclude that DOT
acquired and paid compensation for all rights of access between EQK’s property
and Highway 53, and that all that was excepted from the acquisition was the
conditional ability for EQK to apply for driveway permits for two driveways at
two locations which would both be subject to DOT regulations. Those DOT
regulations authorize DOT to close driveways in the interests of public safety and
convenience. See id., ¶¶25-27; WIS. ADMIN. CODE § TRANS 231.01(1); WIS.
STAT. § 86.07.

¶27 In its only argument directed at the construction of the 1956 award
of damages, EQK points to its use of the word “except” and the dictionary
definition of “except” as “with the exclusion … of.” Based on this definition,
EQK argues that when the award provided that DOT was acquiring all access
rights “except” the two driveways, the driveways were excluded from the access
rights that DOT acquired. However, EQK ignores that the exception was
conditioned on DOT regulations: “[e]xcepted from this award of damages is the
right of access to said highway … subject to the regulations of [DOT].”
(Emphasis added.) As we explained in DEKK, the award of damages did not
reserve a full, unconditional right of access through the driveways exception.
Rather the exception is for two driveway connections to Highway 53 at two

6
Specifically, there is no relevant difference between “excepted” and “reserved” as used
to allow a right of access via the driveways in this case and in DEKK, respectively. “While there
is a distinct difference between an exception and a reservation, the words are often used
interchangeably. A reservation is something taken back from the grant while an exception is
some part of the estate described in general terms in the deed which is not granted.” Murphy v.
Sunset Hills Ass’n, 243 Wis. 139, 143, 9 N.W.2d 613 (1943).

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particular points, subject to permitting and closure under WIS. ADMIN. CODE
§ TRANS 231.03(2). See DEKK, No. 2020AP2146, ¶39.

¶28 In sum, EQK did not possess a “deeded” or “vested” right of access
via the driveways because under the 1956 award of damages DOT acquired all
access rights between the property and Highway 53, reserving only the qualified
and restricted ability to access the highway through two driveways subject to DOT
regulation. Accordingly, EQK’s arguments in support of its position that it is
entitled to compensation for the closure of the two driveways, all of which are
premised on EQK’s possession of “vested access rights” via the two driveways,
fail.7

Separately from the failure of the “vested access rights” premise on which all of EQK’s
7

arguments are based, we make three observations.

First, as to EQK’s argument that DOT lacked police power over the driveways, we
observe that this court in DEKK ruled that DOT possesses police power to regulate driveway
access between a property and a state trunk highway, including to close a driveway, in the
interests of public safety and convenience. See DEKK, No. 2020AP2146, ¶¶25-27.

Second, as to EQK’s argument that DOT improperly invoked its police power by not
following statutory procedures for revoking driveway permits, we observe that, without stating
any opinion as to whether DOT failed to follow procedures for revoking driveway permits, we
agree with DOT that the case law on which EQK relies is inapt and does not support the
proposition that such a failure would “transform[] what would otherwise be an authorized police
power exercise into a taking.”

Third, we observe that within the context of takings jurisprudence, the removal of access
to EQK’s property via the two driveways that were subject to DOT regulation (as we have
explained above) falls properly within the realm of a regulatory taking as opposed to a physical
taking. See Surety Sav. & Loan Ass’n v. DOT, Div. of Highways, 54 Wis. 2d 438, 443, 195
N.W.2d 4645 (1972) (a regulatory taking may occur if government action results in “denying all
access to a parcel of land”). However, the record establishes that EQK cannot establish a
regulatory taking given that three points of access to Highway 53 remain after the two directly
connecting driveways to Highway 53 were closed as part of the 2016 project. See National Auto
Truckstops, Inc. v. DOT, 2003 WI 95, ¶19, 263 Wis. 2d 649, 665 N.W.2d 198 (“deprivation of
direct access to a highway does not constitute a taking of property provided reasonable access
remains.” (citation omitted)).

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CONCLUSION

¶29 For the reasons stated, we conclude that DOT is entitled to summary
judgment dismissing EQK’s taking claim. Accordingly, we affirm.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

14