Island Camping, Inc. v. 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.
July 1, 2021
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. 2019AP2284 Cir. Ct. No. 2017CV74

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

ISLAND CAMPING, INC.,

PLAINTIFF-RESPONDENT,

V.

WISCONSIN DEPARTMENT OF TRANSPORTATION,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Pierce County:
JOSEPH D. BOLES, Judge. Reversed and cause remanded with directions.

Before Fitzpatrick, P.J., Graham, and Nashold, JJ.

¶1 FITZPATRICK, P.J. For over thirty years, Island Camping, Inc.
has operated a commercial campground on an approximately twenty-acre narrow
strip of land along the Mississippi River. A bridge spanning the river between
Minnesota and Wisconsin has stood over a slice of the Island Camping property
No. 2019AP2284

the entire time it has operated the campground. The Department of Transportation
(“DOT”), through eminent domain procedures, permanently took a .64-acre
portion of the Island Camping property, as well as a temporary limited easement
of 1.61 acres, for the construction of a replacement bridge over the Mississippi
River and demolition of the previous bridge.1 In this lawsuit, Island Camping
contends that the DOT’s taking of its property left the remainder of its property as
an “uneconomic remnant” within the meaning of WIS. STAT. § 32.05(3m) (2019-
20)2 and, as a result, the DOT is required by statute to purchase the remainder of
the Island Camping property.3

¶2 Following a trial to the Pierce County Circuit Court, the court
concluded that the DOT’s partial taking, along with the effects of the TLE and the
construction of the replacement bridge and demolition of the previous bridge, have
caused the remaining Island Camping property to be an uneconomic remnant.

¶3 The DOT appeals and argues that the circuit court based its decision
on “improper considerations” not within the analytical framework of WIS. STAT.

1
For convenience, we refer to the DOT’s permanent taking of the .64 acres as the
“partial taking” and the temporary limited easement as the “TLE.”
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
3
WISCONSIN STAT. § 32.05(3m) provides as follows:

(a) In this subsection, “uneconomic remnant” means the
property remaining after a partial taking of property, if the
property remaining is of such size, shape, or condition as to be of
little value or of substantially impaired economic viability.

(b) If the acquisition of only part of a property would
leave its owner with an uneconomic remnant, the condemnor
shall offer to acquire the remnant concurrently and may acquire
it by purchase or by condemnation if the owner consents.

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§ 32.05(3m). The first subject area of the circuit court’s purported error is the
court’s reliance on evidence concerning the economic viability of the Island
Camping business at the remaining property. We reject that argument from the
DOT and conclude that the circuit court properly considered such evidence in light
of the evidence presented by the parties at trial, the specific aspects of this
particular property, and the holdings of the supreme court in Waller v. American
Transmission Co., LLC, 2013 WI 77, 350 Wis. 2d 242, 833 N.W.2d 764. The
second subject area the DOT complains of is that the circuit court based its
decision, in part, on evidence regarding the temporary effects of the bridge
construction and demolition. We agree with the DOT that the circuit court erred
in relying on the temporary problems caused by construction and demolition in
coming to its conclusion that the remaining Island Camping property is an
uneconomic remnant. In addition, we reject Island Camping’s argument that the
circuit court’s error was harmless and did not affect the substantial rights of the
DOT. Accordingly, we remand this matter for a new trial.

BACKGROUND

¶4 The following facts are undisputed or, as noted, are taken from the
trial evidence and the circuit court’s findings of fact.

I. Overview.

¶5 Robert and Margie Moyer have operated the Island Camping
campground4 and marina on a narrow 19.81-acre parcel along the Mississippi
River for over thirty years. That property has been bisected by a bridge standing

4
For ease of reading, we refer to Robert as “Moyer.”

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No. 2019AP2284

over the Island Camping property and the Mississippi River between Minnesota
and Wisconsin.

¶6 Through eminent domain procedures under WIS. STAT. ch. 32,5 the
DOT condemned a portion of the Island Camping property in order to replace the
bridge. More specifically, effective May 1, 2017, the DOT permanently took .64
acres from the Island Camping property for the replacement bridge. The DOT
also obtained a 1.61-acre TLE for bridge construction and demolition. At the time
of the June 2019 trial in this matter, it was anticipated that the replacement bridge
would be completed in the year 2020.

¶7 Prior to the partial taking of .64 acres, the Island Camping
campground included 108 campsites rented to seasonal and more temporary
campers, along with a marina with 55 boat slips. As a result of the partial taking,
Island Camping lost: the boat ramp used by patrons to place boats in the water;
the fish cleaning station used by campers; 15 campsites; and 8 boat slips from the
marina.

¶8 This action initiated by Island Camping against the DOT raised the
issue disputed in the circuit court and this appeal: Island Camping’s claim,
pursuant to WIS. STAT. § 32.05(3m), that the Island Camping property is now an
uneconomic remnant. We next consider pertinent evidence proffered at the court
trial.

“As a general rule, condemnation powers in Wisconsin are set out in WIS. STAT.
5

ch. 32.” Waller v. American Transmission Co., LLC, 2013 WI 77, ¶56, 350 Wis. 2d 242, 833
N.W.2d 764.

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No. 2019AP2284

II. Trial Evidence.

¶9 Moyer testified concerning the campground’s physical layout,
operation, financial standing, and the Island Camping property’s current and future
value. James Johnson, an appraiser retained by Island Camping, and Cindy White,
an appraiser retained by the DOT, testified concerning, among other subjects, the
impact the partial taking has had, and will have, on the value of the Island
Camping property. We next summarize the material testimony of those witnesses
in the context of pertinent subject matters.

A. Loss of the Boat Ramp.

¶10 Moyer testified to the following about the loss of the boat ramp as a
result of the partial taking. Without a boat ramp on the Island Camping property,
the nearest boat ramp for Island Camping patrons is a two and one-half-mile drive
away and a 30-minute motor boat trip back to the Island Camping property.
Campers have complained about this inconvenience. Moyer explained that, to
now build a new boat ramp at another spot on the Island Camping property, Island
Camping must obtain permits from Pierce County, the Department of Natural
Resources, and the Army Corps of Engineers. Moyer has experience with these
types of permits and had what he considered to be a frustrating time getting the
permit for the Island Camping marina, with the process taking three years. Moyer
expressed his opinion that there is “[z]ero” chance of Island Camping obtaining
the necessary permits to build a new boat ramp at its property.

¶11 In order to form his opinions, Johnson interviewed local and state
actors that would have to approve permits for a new boat ramp at the Island
Camping property. Based on those interviews, Johnson testified that it is
“reasonably probable that [Island Camping] will not be given” permits for a new

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No. 2019AP2284

boat ramp. Johnson also surveyed five campground owners. Each of those
owners stated to Johnson that the loss of direct water access through a boat ramp
would be damaging to any campground that may try to operate at the Island
Camping property in the future.

B. Loss of the Fish Cleaning Station.

¶12 Moyer testified as follows regarding the loss of the Island Camping
fish cleaning station as a result of the partial taking. Without a fish cleaning
station, campers are forced to throw fish guts from cleaning fish into the woods or
in the garbage, and that makes the campground smell. Island Camping took steps
to replace the fish cleaning station by contacting the Pierce County zoning office.
But, that office will not allow Island Camping to put in a new station due to a
floodplain in that area. Losing the fish cleaning station has made campers
unhappy, and some have moved out for that reason.

¶13 Johnson testified to the following about the fish cleaning station.
Five campground owners informed Johnson that, without a place to dispose of the
remains of fish that are caught and cleaned, the smell and flies would likely be so
bad as to force any campground to close. Johnson opined that another fish
cleaning station cannot be built on the Island Camping property because that area
is in a flood zone.

¶14 White did not form an opinion on the likelihood that a permit could
be obtained by Island Camping for another fish cleaning station.

C. Effects of the Partial Taking, TLE and Construction.

¶15 Moyer testified to the following regarding the effects of the partial
taking, TLE and construction on the Island Camping business. The camping

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No. 2019AP2284

season runs from May 1st to November 1st each year. Moyer explained that
Island Camping traditionally had three kinds of campsites: seasonal, monthly, and
“weekenders.” “Weekenders” were important to Island Camping because they
paid about four times more per night than seasonal campers. Moyer made the
business decision to end all weekend camping and marina slip rentals during
construction of the bridge, and, instead, Island Camping has required a minimum
stay of at least one month.

¶16 Fill from a temporary causeway created as part of the bridge
construction caused water to back up in certain campsites when it rained. Rain
water drained into the river before that causeway was built. Moyer also testified
that the bridge construction made the campground “look like heck.” Island
Camping’s counsel asked Moyer: “What impacts from construction [of the
bridge] do you anticipate facing in the future?” Moyer answered in pertinent part:
“It’s going to get a lot worse because if you think the noise of building a bridge is
loud, the noise of demolishing one is louder and there’s [another] year of that
coming up.”

¶17 As noted, following the partial taking, the campsites for rent were
reduced in number from 108 to 93. For the ten to fifteen years prior to the partial
taking and construction, Island Camping never had vacancies and had a wait list
for campsites during that time. After the partial taking and after construction
began, starting in 2018, Island Camping had vacancies and no wait list. More
specifically, in 2017, 93 sites were rented; in 2018, 87 sites were rented; and by
the time of the June 2019 trial, only 60 campsites were rented so far in that year.

¶18 Since 2017, Island Camping’s profits have decreased and, in 2019,
Moyer did not expect any profit. Moyer attributed the decrease in profits to losing

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No. 2019AP2284

“overnighters” and lines of business. Moyer was asked: “What does this exhibit 7
[(a summary of decrease in profits)] tell you about the impact of the DOT taking
on the Island Campground?” He answered: “Well, I think that the impact is
totally due to the construction.” Moyer also testified that the “majority of the
damages” to Island Camping’s business he attributes to the “construction period
and the inconveniences associated with that.” Moyer acknowledged at trial that
the campsites in the area of the TLE will become usable again after construction.
Moyer testified that it was “possible” to continue to operate the Island Camping
campground, but it would take “another [Moyer] that was willing to put a 15[-
]year plan together [to make it] a good campground to buy.”

D. Highest and Best Use, and Before and After Value.

¶19 White testified to the following regarding the highest and best use,
and value, of the Island Camping property.6 Before and after the partial taking,
the highest and best use of the Island Camping property is “improved commercial
with a campground.” White concluded that the value of the property before the
partial taking was $1,836,000, and after the partial taking the value will be
$1,761,795. White agreed that it would impact the value of the property if Island
Camping does not obtain the necessary permits to replace the boat ramp. But, she
did not have an opinion as to the value of the property if a new boat ramp cannot
be built. White also did not develop an opinion regarding the value of the property
if it is not possible to rebuild the fish cleaning station.

6
See State ex rel. Collison v. City of Milwaukee Bd. of Rev., 2021 WI 48, ¶37, 960
N.W.2d 1 (“[W]e begin with the proposition that ‘real estate must be valued at its highest and
best use.’”).

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No. 2019AP2284

¶20 Johnson agreed with White that the highest and best use of the Island
Camping property prior to the partial taking was as a commercial campground.
Johnson concluded that the property was worth $1,944,000 ($108,000 more than
White’s opinion) before the partial taking. Johnson stated that the Island Camping
property can no longer be profitably used as a campground and marina. Johnson
opined that the property’s highest and best use changed to privately owned
recreational land because of the loss of the boat ramp and fish cleaning station.
Johnson concluded that the value of the Island Camping property as privately-
owned recreational land is $104,463.

¶21 In Moyer’s opinion, the property was worth $2 million before the
DOT partial taking, the TLE and the construction. He testified that it is not
economically viable for him to continue to run the Island Camping campground.
Moyer also testified that the property is now nonbuildable vacant land, decreasing
the value to $8,000 per-acre (the price of farmland in Moyer’s view), or about
$150,000 total.

III. Findings and Conclusions.

¶22 The circuit court made findings and conclusions germane to our
review which we now consider.

¶23 The circuit court framed the question before it as whether the Island
Camping property “remaining is of such size, shape, or condition as to be of …
substantially impaired economic viability” pursuant to WIS. STAT. § 32.05(3m).7
7
The statute at issue in this case, WIS. STAT. § 32.05(3m), pertains to uneconomic
remnants and applies when a condemnation is for “transportation facilities.” By contrast, WIS.
STAT. § 32.06(3m), which also pertains to uneconomic remnants, applies when the condemnation
is for a purpose “other than transportation matters.”
(continued)

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No. 2019AP2284

The circuit court also stated that the “use” of the property is “crucial” to
determining the “value of the property.” More particularly regarding the use of
the Island Camping property, the circuit court stated that it was “required to look
at … the circumstances,” and “many factors … weighed in favor of the taking
causing significant loss to the businesses, in particular the camping business.”

¶24 The circuit court made findings regarding the effects of the partial
taking, TLE, and bridge construction which we now summarize.

A. Highest and Best Use, and Value, of the Property.

¶25 The circuit court discussed the Island Camping property’s highest
and best use, and the value of the property, pre-taking and post-taking. The circuit
court found credible the opinions of Johnson and White that, pre-taking, the
highest and best use of the property was as a commercial campground, as well as
those experts’ similar pre-taking value determination of the Island Camping
property at approximately $1,900,000. The court “criticized” Johnson’s opinion
about the post-taking value of the Island Camping property and Johnson’s
“ultimate appraisal.” The court found that Johnson’s opinion that the highest and
best use of the property after “the taking” as private recreational property “didn’t
make sense.” Immediately thereafter, the circuit court found:

I think there is probably some economic viability if you can
get that property purchased for the right amount and …
given the business and profits being reduced [it] certainly
isn’t worth what it was at the time of the taking. But if
somebody is able to purchase that at a price that wouldn’t

In giving its decision on the record, the circuit court misspoke and referred to the
applicable statute as “32.06 subdivision 3m.” That makes no difference to our analysis because
the language of WIS. STAT. § 32.05(3m) is identical to the language of WIS. STAT. § 32.06(3m).
Waller, 350 Wis. 2d 242, ¶63 n.19.

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create debt that would be smothering, I think it could be a
viable business ….

The circuit court did not make findings regarding the dollar value of the Island
Camping property post-taking or Moyer’s opinion that the value of the Island
Camping property is $150,000 post-taking.

B. Boat Ramp.

¶26 The circuit court recognized the factual dispute about whether the
campground permanently lost the boat ramp as a result of the partial taking. The
court found that three governmental entities must approve a new boat ramp for
Island Camping’s property and that Island Camping had not formally submitted an
application for a new boat ramp to any of those entities. Based on the testimony
of Moyer and Johnson the court found that, “to a greater weight of the credible
evidence,” Island Camping had shown that it “had very little chance of getting”
permits to build a new boat ramp.

C. Fish Cleaning Station.

¶27 The circuit court also considered the loss of the fish cleaning station
because of the partial taking. The court pointed to Moyer’s testimony that “the
campground … always catered to fisherm[e]n.” The court stated that Johnson also
testified that the fish cleaning station “was very important to the economic
viability of the campground after the taking.” The court further found:

[C]ampers primarily were there for purposes of fishing.
And to not have a fish cleaning station was crucial to the
business in terms of satisfying the customers. You [must]
have a spot to clean fish where you can kind of keep the
smell away from the other campers and direct campers to
that area to clean their fish.

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D. Negative Effects of the Partial Taking, Bridge
Construction, and Demolition.

¶28 As noted, the circuit court rejected Johnson’s opinions about the
highest and best use of the property after the taking and the post-taking value of
the property. However, the court found Johnson’s testimony to be more credible
than White’s testimony in terms of the impact of various “problems” arising from
the partial taking and construction. The court stated:

I do feel that [Johnson’s] analysis and his recognition of the
[effect] of the problems on the value on the business,
economic business issues … was … the more credible of
the experts with regard to those findings ….

¶29 The circuit court further found that Moyer’s testimony about
operating a campground business was “very credible.” The court stated:

[Moyer] was the primary fact witness about the business….
[Moyer’s testimony] was intelligent, reasonable and
extremely credible in my view. He made sense. He … is
very intelligent with the ability to analyze situations and I
think he’s shown by the development and operation of the
campground over the past 30 years that he is quite an astute
businessman … and he knows … the campground business
and the marina business ….

¶30 The court noted that the DOT was critical of the business decision
made by Moyer that, during the construction, profitable rentals for weekend and
other short-term campers have been eliminated. But, the circuit court found that
Moyer’s business decision in doing so was reasonable.

¶31 The circuit court explicitly addressed disruptions in the Island
Camping business that have arisen during the bridge construction. The court
recognized that the “actual end loss in terms of acreage” is .64 acres, and the
construction was “still ongoing” at the time of trial with a 1.61-acre TLE “taken

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No. 2019AP2284

for a temporary and limited basis.” The circuit court acknowledged the DOT’s
objection to the court considering the temporary effects of construction: “[T]he
[DOT] argued quite strenuously that I was not to consider inconvenience and that
during construction damage is not to be considered.” In rejecting the DOT’s
argument, the court stated that the campground’s losses during construction “must
be considered in determining … whether or not there is economic viability … and
to determine substantially impaired economic viability,” the court is “required to
look at what was lost as to economic viability during the taking and during the
construction period and that includes the construction period ….”

¶32 The circuit court made findings concerning temporary effects on the
campground business at the Island Camping property because of the bridge
construction. The court found that the construction had caused “drainage issues
from the causeway causing water to back up [into the campground] during rain
storms.” The court also found that the continuing road construction “creates
noise” and that “there’s no peace for the campers [at Island Camping] because the
ongoing noise and future construction, which includes the demolition of the old
bridge, will be very loud and affects the desirability of that campground for
campers.” The court further found that the “ongoing” bridge construction “has
affected the business of the campground in terms of its economic viability” which
“is show[n] by the fact that there was a … fairly significant waiting list [for
campsites] up until the time of the taking, after which … the waiting list has
disappeared and there are in fact now vacancies. I think that shows that the
decline of the campground which is a result of the taking is fairly obvious.” The
court credited Moyer’s testimony that Island Camping was “going backwards from
a business standpoint here from the time of the taking and even into the future
until completion of the construction, the business has taken a hit money-wise,

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No. 2019AP2284

profit-wise, income-wise but beyond that reputation[-]wise.” The circuit court
specifically included the “construction issues” in the factors that made the Island
Camping “business way less valuable after the taking than it was before.”

¶33 The court found that “the taking” “resulted in a loss of reputation
[for the Island Camping business], which will take many years to remedy,” and it
will be “very hard to get that back,” and that caused a “fall in [Island Camping’s]
business.” The court further found that there were no campsite vacancies at Island
Camping in 2016 and 2017, in 2018 there were 6 vacancies, and in 2019 there
were 33 campsite vacancies as of the time of the June 2019 trial. Island
Camping’s gross income between the years 2014 and 2018 was as follows:
$223,382 in 2014; $242,173 in 2015; $224,244 in 2016; $226,413 in 2017; and
$194,996 in 2018; with no figures available for 2019 at the time of trial.

¶34 The circuit court concluded its decision by stating that Island
Camping had shown “by a greater weight of the credible evidence” that the Island
Camping property remaining after the taking “is of a … substantial[ly] impaired
economic viability such that it is … under Wisconsin law an uneconomic
remnant.”

¶35 Other material facts will be discussed later in this opinion.

DISCUSSION

¶36 The parties raise two principal issues in this appeal. First, the DOT
argues that the circuit court erred by considering “improper” factors when it
applied the provisions of WIS. STAT. § 32.05(3m) to the facts of this case. Second,
Island Camping argues that any such error by the circuit court is harmless because

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No. 2019AP2284

the remaining evidence properly considered by the circuit court is sufficient to
affirm the decision of the circuit court. We address each issue in turn.

I. Standard of Review and Interpretation of Statutes.

¶37 We begin by discussing our standard of review and principles
regarding the interpretation of statutes.

¶38 Whether the property remaining after a partial taking is of
“substantially impaired economic viability” is a question of fact for the circuit
court to resolve. Waller, 350 Wis. 2d 242, ¶101. “Findings of fact shall not be set
aside unless clearly erroneous, and due regard shall be given to the opportunity of
the trial court to judge the credibility of the witnesses.” Id., ¶52 (quoting WIS.
STAT. § 805.17(2)). The circuit court was also required to apply the statutory
provisions of WIS. STAT. § 32.05(3m) to the facts of this matter. “The application
of a statute to the facts of the case is a question of law that we review de novo.”
Waller, 350 Wis. 2d 242, ¶52; see also Emer’s Camper Corral, LLC v.
Alderman, 2020 WI 46, ¶16, 391 Wis. 2d 674, 943 N.W.2d 513 (noting that
whether the circuit court applied the proper legal standard is a question of law this
court reviews de novo).

¶39 In this appeal, we must interpret WIS. STAT. § 32.05(3m). Statutory
interpretation is a question of law reviewed de novo. Waller, 350 Wis. 2d 242,
¶51.

“The purpose of statutory interpretation is to determine
what the statute means so that it may be given its full,
proper, and intended effect.” Heritage Farms, Inc. v.
Markel Ins. Co., 2012 WI 26, ¶26, 339 Wis. 2d 125, 810
N.W.2d 465 (internal brackets and citation omitted).
Statutory interpretation “begins with the language of the
statute.” State ex rel. Kalal v. Circuit Court for Dane
Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110

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No. 2019AP2284

(internal quotation marks omitted). Courts give statutory
language its common, ordinary meaning. Id. Statutory
language is interpreted in the context in which it is used,
not in isolation but as part of a whole. Id., ¶46. We must
construe statutory language reasonably, so as to avoid
absurd results. Id. Legislative history may be relevant to
confirm a statute’s plain meaning. Id., ¶51.

Waller, 350 Wis. 2d 242, ¶71. Our supreme court instructs that rules of
construction for eminent domain statutes must guide our interpretation of WIS.
STAT. ch. 32:

Because the power of eminent domain under WIS.
STAT. ch. 32 is extraordinary, we strictly construe the
condemnor’s power ... while liberally construing provisions
favoring the landowner, including available remedies and
compensation.

Waller, 350 Wis. 2d 242, ¶72 (citations and quotation marks omitted).

II. Eminent Domain Procedures Generally.

¶40 Wisconsin’s eminent domain procedures give context to our
discussion and the claims made by Island Camping. The Waller court stated:

A “taking”—or condemnation—of private property
for public use requires the award of just compensation
under both the United States and Wisconsin constitutions.

Id., ¶55 (citations omitted).

¶41 WISCONSIN STAT. § 32.05 provides separate tracks for challenges to
a taking of private property. One track concerns right-to-take actions—in other
words, challenges to the taking itself. The gist of an uneconomic remnant claim is
that it is improper for the condemnor to be allowed a partial taking of property if
the remainder of the parcel would be an uneconomic remnant under the statute. In
such cases, the condemnor must purchase the entire parcel. An uneconomic

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No. 2019AP2284

remnant claim is properly brought through a right-to-take action, and such action
does not prevent the condemnation from moving forward. Waller, 350 Wis. 2d
242, ¶6.

¶42 Another track concerns just compensation proceedings—that is,
challenges to the amount of compensation offered by the condemnor. Just
compensation may include severance damages. See WIS. STAT. § 32.09(6)(e).
Severance damages are “the diminution in the fair market value of the remaining
land that occurs because of [a] taking.” Justman v. Portage Cnty., 2005 WI App
9, ¶1 n.2, 278 Wis. 2d 487, 692 N.W.2d 273 (citation omitted).

¶43 Island Camping brought this right-to-take action pursuant to WIS.
STAT. § 32.05(5). In the alternative to the right-to-take action, Island Camping
also brought a just compensation challenge requesting damages based on the
partial taking. That claim has been stayed pending resolution of Island Camping’s
right-to-take action.

III. Legislative History.

¶44 As noted, our supreme court in Waller stated that legislative history
assists in interpreting WIS. STAT. § 32.05(3m). Waller, 350 Wis. 2d 242, ¶71.8
We now consider legislative history pertinent to our analysis.

The uneconomic remnant statute, WIS. STAT.
§ [32.05](3m) … was the product of the legislature’s
Special Committee on Eminent Domain (Special

8
The statutory subsection at issue in Waller was WIS. STAT. § 32.06(3m) but, as already
noted, the provisions of WIS. STAT. §§ 32.05(3m) and 32.06(3m) are identical. Waller, 350 Wis.
2d 242, ¶63 n.19. The parties agree that Waller is pertinent to the interpretation of § 32.05(3m),
and neither party argues that that statutory subsection is subject to a different interpretation than
§ 32.06(3m).

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No. 2019AP2284

Committee), under the auspices of the Wisconsin
Legislative Council.

… [T]he Special Committee[] members considered
separate draft legislation on various topics that would
eventually lead to several bills, including [WIS. STAT.
§ 32.05(3m)], enacted as Chapter 440 of the Laws of
1977…. The summary of proceedings indicates that the
draft legislation would “allow[] condemnors to acquire
uneconomic remnants” and that the draft was based on
Section 208 of the Uniform Eminent Domain Code.

Waller, 350 Wis. 2d 242, ¶¶73-74 (internal citations omitted).9

¶45 In Waller, our supreme court considered changes made by the
legislature to MODEL EMINENT DOMAIN CODE § 208 (UNIF. L. COMM’N 1974) in
enacting WIS. STAT. § 32.05(3m):

Section 208 [(of the Model Code)], titled “Offer to Acquire
Uneconomic Remnant,” reads as follows:

….

(b) “Uneconomic remnant” as used in this section
means a remainder following a partial taking of property, of
such size, shape, or condition as to be of little value or that
gives rise to a substantial risk that the condemnor will be
required to pay in compensation for the part taken an
amount substantially equivalent to the amount that would
be required to be paid if it and the remainder were taken as
a whole.

The Special Committee replaced the above emphasized
language with the more succinct phrase “substantially
impaired economic viability.”

Waller, 350 Wis. 2d 242, ¶75 (internal citation omitted).10

9
“The National Conference of Commissioners on Uniform State Laws officially
changed the Uniform Eminent Domain Code to a Model Act in 1984. Model Eminent Domain
Code, 13 U.L.A. 1 (2002).” Waller, 350 Wis. 2d 242, ¶74 n.21.

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No. 2019AP2284

¶46 Accordingly, as stated above, WIS. STAT. § 32.05(3m)(a) enacted by
our legislature provides as follows:

(a) In this subsection, “uneconomic remnant” means the
property remaining after a partial taking of property, if the
property remaining is of such size, shape, or condition as to be of
little value or of substantially impaired economic viability.

¶47 With that legislative history in mind, we discuss a contention of the
DOT. The DOT points out that, according to Waller, WIS. STAT. § 32.05(3m) is
“based on” § 208 of the Model Code, and the legislature “replaced” a longer
phrase in the Model Code with the “more succinct phrase” “substantially impaired
economic viability.” Waller, 350 Wis. 2d 242, ¶¶74-75. From that, the DOT
contends that our supreme court has held that the “more succinct phrase” in
§ 32.05(3m) is identical in meaning to the longer phrase from the Model Code it
replaced.

¶48 We reject the DOT’s attempted extension of Waller for the
following reasons. First, in Waller the supreme court did not discuss any reason
that the legislature changed the Model Code language regarding uneconomic
remnants. Put another way, our supreme court has not adopted the DOT’s position
that the Model Code provision is identical in meaning to WIS. STAT. § 32.05(3m).
As a result, we discern the intent of the legislature through: the explicit holdings
of Waller; the statutory language drafted by the legislature; and the Special
Committee on Eminent Domain’s generalized statement recognized in Waller that
the language in § 32.05(3m) is “based on” § 208 of the Model Code. Second, the

10
We observe that, in WIS. STAT. § 32.05(3m)(a), the legislature also replaced the phrase
“a remainder following a partial taking of property” in the Model Code with the phrase “the
property remaining after a partial taking of property, if the property remaining is.”

19
No. 2019AP2284

legislature adopted the Special Committee’s re-writing of that Model Code
provision. As already noted, the legislature kept only the phrases “partial taking
of property” and “of such size, shape, or condition as to be of little value” from the
Model Code language for § 32.05(3m). That wholesale redrafting of the Model
Code language undercuts the DOT’s position that the Model Code and
§ 32.05(3m) are identical in meaning. Third, the longer phrase in the Model Code
the DOT’s argument refers to is narrow in that it focuses only on a comparison of
the amounts the condemnor would be required to pay for the “part taken” as
compared to the amount required to be paid for the “whole” “remainder” and “part
taken.” See MODEL EMINENT DOMAIN CODE § 208(b) (“[T]hat gives rise to a
substantial risk that the condemnor will be required to pay in compensation for
the part taken an amount substantially equivalent to the amount that would be
required to be paid if it and the remainder were taken as a whole.”) (emphasis
added). As we will discuss shortly, our supreme court in Waller has interpreted
§ 32.05(3m) such that the before-taking and after-taking value of the property is an
important factor in the analysis, but that is not the only factor as it is in the
provision in the Model Code. That holding in Waller cannot be reconciled with
the DOT’s interpretation of the phrase “substantially impaired economic viability”
as being identical in meaning to the longer phrase in the Model Code rejected by
the legislature. Fourth, the Model Code provision requires that, for the remaining
property to be an uneconomic remnant, the values of the “part taken” and the
“whole” including the “remainder” must be “substantially equivalent” in amount.
Put another way, the “remainder” must be of minimal value. Again, as will be
discussed shortly, that definition of uneconomic remnant cannot be reconciled
with the holdings of Waller.

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No. 2019AP2284

IV. Statutory Issue in This Appeal.

¶49 For further context, we now consider the specific statutory issue
raised in this appeal.

¶50 We observe that WIS. STAT. § 32.05(3m) could reasonably be read as
meaning that an “uneconomic remnant” exists if “the property remaining is of
such size, shape or condition as to be of little value.” According to this reading of
the statute, the phrase “such size, shape or condition” would only modify the
phrase “little value,” not the phrase “substantially impaired economic viability.”
However, both the majority and the dissent in Waller read the phrase “such size,
shape or condition” as referring to both the phrase “little value” and the phrase
“substantially impaired economic viability.” Waller, 350 Wis. 2d 242, ¶¶101,
119, 181. As a result, an uneconomic remnant may exist if the property remaining
is “of such size, shape or condition as to be of … substantially impaired economic
viability.”

¶51 Next, neither the parties nor the circuit court mention in their
discussions the phrase “little value” as used in WIS. STAT. § 32.05(3m). So, our
focus is on the alternative phrase in the statute, “substantially impaired economic
viability.”

¶52 Further, neither the parties nor the circuit court have based their
analyses on the “size” or “shape” of the Island Camping “property remaining”
after the partial taking. WIS. STAT. § 32.05(3m). From that, we conclude that the
size and shape of the Island Camping property remaining after the partial taking is
not materially different than the size and shape of that property before the partial
taking. We concentrate our discussion, as have the parties, on the “condition” of
the Island Camping property.

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No. 2019AP2284

¶53 Accordingly, the statutory question under WIS. STAT. § 32.05(3m)
raised in this appeal is whether the Island Camping property remaining after the
partial taking is of such condition as to be of substantially impaired economic
viability.11

V. Waller.

¶54 Because our supreme court’s opinion in Waller is consequential to
our analysis, we briefly recount the facts of that case and the pertinent holdings of
that opinion.

A. Material Facts.

¶55 The Wallers owned a 1.5-acre triangular lot that included a single-
family residence bounded on the east by an interstate highway, on the north by a
road, and on the west by a vacant lot. Waller, 350 Wis. 2d 242, ¶11. The
condemnor, American Transmission Company (“ATC”), had an existing
transmission line easement on the north side of the property but widened “the
easement to 45 feet—an extension of 25 feet over the existing easement.” Id.,
¶19. ATC also took a second easement, 45 feet wide, that ran along the east side
of the property within the 50-foot highway setback. Id. In addition, ATC
installed a large utility pole in the northeast corner of the property to support
conductor wires and distribution lines. Id. By the time of the partial taking,
“nearby land that was once agricultural became an industrial park.” Id., ¶¶11, 13.

11
“Property” is defined in WIS. STAT.§ 32.01(2) as including “estates in lands, fixtures
and personal property directly connected with lands.” See also United America, LLC v.
Wisconsin DOT, 2021 WI 44, ¶12, 397 Wis. 2d. 42, 959 N.W.2d 317.

22
No. 2019AP2284

The Wallers claimed that those actions diminished the value of their property so
substantially that they were left with an uneconomic remnant. Id., ¶2.

¶56 The circuit court found that:

[T]he [Waller] property suffered “substantially impaired
economic viability” because [of the substantial reduction of
the value of the property]; … [and] the taking made the
value of the residential improvements obsolete because the
highest and best use after taking was vacant industrial land;
… [and] after the activation of both transmission line[s],
the Wallers experienced regular electronic interference that
prompted concern for themselves, their family, and
potential buyers; and … the removal of shrubbery and trees
within the easement “substantially reduced the
attractiveness of the site” and eliminated a sound barrier
between the home and [the interstate].

Id., ¶42. The supreme court agreed with the circuit court that, because of the
partial taking, the Waller property became an uneconomic remnant. Id., ¶7.

B. Pertinent Holdings.

¶57 We now discuss the pertinent holdings of the supreme court’s
opinion in Waller.

¶58 First, in Waller, the supreme court drew clear distinctions between
WIS. STAT. § 32.05(3m) and uneconomic remnant statutes of other states, and
those distinctions illuminate the subsection’s meaning. The court concluded that
statutes in Oregon and Virginia defined “uneconomic remnant” as land “with no
practical value or utility,” and as “unusable” and “valueless.” Waller, 350 Wis. 2d
242, ¶103 (citing Lake Oswego v. Babson, 97 Or. App. 408, 776 P.2d 870 (1989);
Spotsylvania Cnty. v. Mineral Springs Homeowners Ass’n, No. CL02-391, 2003
WL 21904116 (Va. Cir. Ct. July 18, 2003)). Drawing a contrast with those
statutes, our supreme court stated that the language “economic viability has been

23
No. 2019AP2284

substantially impaired” in § 32.05(3m) is a “broader definition” than the statutory
definitions in Oregon and Virginia because the applicable Wisconsin statute
allows for the conclusion that “property constitutes an uneconomic remnant even
though it is not valueless.” Waller, 350 Wis. 2d 242, ¶103.12

¶59 Second, the Waller court continually returns to the point that a loss
in value of the property post-taking, as compared to the pre-taking value, is a
factor in determining whether the remaining property is an uneconomic remnant.
Id., ¶¶7, 20, 21, 22, 42, 95, 102, 119 (as examples, appraisals indicating a 57
percent and 88 percent loss of value “are indicative of substantial economic
impairment,” and “substantially diminished” “value” of the property is a factor to
consider in determining if a property is an uneconomic remnant). However, as
alluded to above, a change in value of the property after the partial taking is not
dispositive. The Waller court stated, “[t]he existence of an uneconomic remnant
will not always turn on the percentage of land or the percentage of value taken by
the condemnor. The existence of an uneconomic remnant almost always turns on
the economic viability of what is left after the taking.” Id., ¶95 n.25.13

12
In addition, that interpretation of WIS. STAT. § 32.05(3m) by the supreme court
necessarily means that the phrase “little value” as used in § 32.05(3m) has a meaning different
than “substantially impaired economic viability.” That conclusion is bolstered by the
legislature’s use of two separate phrases in that statutory subsection. Johnson v. City of
Edgerton, 207 Wis. 2d 343, 351, 558 N.W.2d 653 (1996) (holding that when the legislature uses
different words in the same section of a statute, this court presumes that the legislature intended
each word to have a distinct meaning).
13
This court has recognized the same:

(continued)

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No. 2019AP2284

¶60 Third, a change in the highest and best use of the property after the
partial taking is a factor a court considers in determining if a partial taking has
caused the remaining property to become an uneconomic remnant. Id., ¶¶20, 22,
42, 97. In a similar vein, a court may consider whether there are restrictions or
limits on the use of the property caused by the partial taking. Id., ¶¶22, 42, 99,
100, 102 (noting that the property “could no longer sustain its previous use as a
residential property,” that “[t]he two 45-foot-wide easements restrict the
property’s use for industrial or residential purposes,” and that the appraisals
“reveal a picture of a property so dramatically affected by the easements that it has
limited residential and industrial use after the taking”).

¶61 Finally, a court also considers the attractiveness to a potential
purchaser, and the usability, of the property remaining after the partial taking to a
potential purchaser. Id., ¶100 (“[A] reduced sound barrier between the residence
and [a highway] and perceived electromagnetic disturbances … would likely rattle
any potential buyer [and] further diminish the attractiveness and usability of the
property.”). A court also takes into account the desirability and practicality of the
property. Id., ¶119 (stating that the partial taking “substantially diminished the

A $10 million property subjected to a partial taking leaving a
$100,000 property might be an uneconomic remnant, whereas
the partial taking of a $150,000 property leaving a $100,000
property might not be an uneconomic remnant. The reverse
could also be true depending upon the facts and circumstances of
each case.… [T]he inquiry does not end once the dollar value of
the remaining property is determined—a circuit court is also
expected to examine whether the partial taking “substantially
impaired [the] economic viability” of the property.

Waller v. American Transmission Co., LLC, 2011 WI App 91, ¶15, 334 Wis. 2d 740, 799
N.W.2d 487.

25
No. 2019AP2284

desirability [and] practicality … of the Wallers’ property for either a residential or
industrial user”).

¶62 We next discuss the DOT’s arguments regarding purported errors of
the circuit court.

VI. Evidence Concerning the Island Camping Business.

¶63 The DOT first argues that the circuit court erred in basing its
decision in part on evidence regarding the viability of the Island Camping
campground business at the remaining property rather than the economic viability
of the property itself. Prior to discussing that argument, we resolve two
preliminary matters raised by the parties concerning this issue.

¶64 Island Camping asserts that, because the DOT did not object at trial
to the admission of evidence regarding the viability of the Island Camping
business at this property, the DOT has then forfeited any objection to the circuit
court’s reliance on that evidence in its decision. In response, the DOT asserts that
it argued in post-trial briefing that the circuit court cannot properly consider in its
decision evidence of the viability of the Island Camping business at this property
and instead must consider the economic viability of the property itself. We agree
that the DOT made such arguments in its post-trial briefing, and those arguments
post-trial to the circuit court properly preserved the DOT’s position.

¶65 Next, several times in briefing in this court the DOT contends that
Island Camping should seek damages in a just compensation proceeding rather
than the relief requested in this right-to-take action. We reject the DOT’s
contention because, as discussed, the issue in this appeal is only whether the
condition of Island Camping’s property remaining after the partial taking is of

26
No. 2019AP2284

substantially impaired economic viability and, therefore, an uneconomic remnant
under WIS. STAT. § 32.05(3m). See Waller, 350 Wis. 2d 242, ¶90 (stating that an
uneconomic remnant determination should, whenever reasonably possible,
precede compensation questions). Moreover, the supreme court has held that an
uneconomic remnant claim is “fundamentally different” than an action that
decides the amount of damages caused by a taking. Id., ¶90. Accordingly, DOT’s
arguments that Island Camping should instead seek a damage award in a just
compensation proceeding does not change our analysis or view of the facts in any
material way.

¶66 We now discuss, and reject, the DOT’s substantive arguments
regarding this purported error of the circuit court.

¶67 First, according to the DOT, one facet of the circuit court’s alleged
error in not focusing on the remaining property is that the court refused to consider
“industrial” uses for the Island Camping property as were considered for the
property in Waller. In Waller there are references to “industrial” uses of the
property after the partial taking because the Waller property was located next to an
industrial park, and the experts who testified in that case agreed that the highest
and best use of the property after the partial taking was for “industrial” purposes.
Id., ¶¶7, 13, 20, 22, 42, 97, 99, 119. Nothing in Waller mandates a court’s
consideration of industrial uses for property post-taking in an uneconomic remnant
action. In addition, the DOT cites to no evidence in the record concerning use of
the remaining Island Camping property for any industrial purpose. We disagree
with the DOT’s contention that Waller requires that, in every case in which there
is a purported uneconomic remnant, a court must consider “industrial” uses of the
remaining property.

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No. 2019AP2284

¶68 Second, the DOT argues that the circuit court’s decision contradicts
the requirements of WIS. STAT. § 32.05(3m) because a comment to § 208 of the
Model Code states that the remaining property is an uneconomic remnant only if it
“preclude[s] economically practicable use for any plausible application.” We
reject this argument because the DOT’s reliance on one phrase in a comment to
the Model Code cannot be reconciled with the holdings in Waller already
discussed which establish that the remaining property can have some economically
practicable application and yet be an uneconomic remnant under § 32.05(3m).
See, e.g., Waller, 350 Wis. 2d 242, ¶103 (stating that property can be an
uneconomic remnant “even though it is not valueless”). Moreover, that language
in the comment is not part of the statute drafted by the legislature, and we will not
graft language onto a statute that the legislature has not accepted. Brey v. State
Farm Mut. Auto. Ins. Co., 2020 WI App 45, ¶14, 393 Wis. 2d 574, 947 N.W.2d
205 (“In addition, courts should not add words to, or subtract words from, a statute
to give it a certain meaning.”).14

¶69 Third, the DOT argues that the circuit court’s decision contradicts
what the DOT perceives as a requirement in Waller that uneconomic remnant
claims be decided “promptly” by circuit courts. But, the DOT does not coherently
explain this conclusory assertion and makes no viable argument that this case was
not decided “promptly” by the circuit court. Therefore, we do not accept that
undeveloped argument. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d

14
The DOT also asserts that the circuit court’s decision to purportedly focus on the
Island Camping business rather than the property itself contradicts a comment to the Model Code
concerning “rental income.” However, other than making a conclusory assertion of its
applicability, the DOT gives us no basis to conclude that the language in that comment is
reflected in WIS. STAT. § 32.05(3m) or how that comment is related to the facts of this case.

28
No. 2019AP2284

633 (Ct. App. 1992) (stating we need not address insufficiently developed
arguments).

¶70 Fourth, the DOT contends that the circuit court erred in relying on
“irrelevant evidence” because the circuit court’s finding that Island Camping
would not be able to obtain permits for a new boat ramp was based on “subjective
business decisions” by Moyer. The circuit court gave weight to Moyer’s
testimony that there was “zero” chance of getting those permits. It was the circuit
court’s prerogative to weigh the evidence and determine whether Island Camping
would be able to obtain the necessary permits from the three governmental entities
to replace the boat ramp. “Findings of fact shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity of the trial court to
judge the credibility of the witnesses.” Waller, 350 Wis. 2d 242, ¶52 (quoting
WIS. STAT. § 805.17(2)). Further, as pointed out by Island Camping, the DOT
proffered no evidence at trial to establish that there was a viable chance that Island
Camping could obtain those permits.

¶71 Fifth, the DOT contends that the circuit court erred in basing its
decision in part on evidence regarding the viability of a campground business
because the applicable statute mentions only the “property remaining” rather than
a business operating at that same property. WIS. STAT. § 32.05(3m). However,
the DOT concedes as it must that a circuit court, in making its determination as to
whether remaining property is an uneconomic remnant, may consider the highest
and best use of the property before and after the partial taking. Waller, 350 Wis.
2d 242, ¶¶20, 22, 42, 97 (stating that a change in the highest and best use of the
property before and after the partial taking is a factor a court considers in
determining if a partial taking has caused the remaining property to become an
uneconomic remnant). Here, as already discussed, the DOT’s own expert opined

29
No. 2019AP2284

that the highest and best use of the Island Camping property both before and after
the partial taking is as a commercial campground. Indeed, the DOT proffered no
evidence that the remaining property’s highest and best use now or in the future is
anything other than as a commercial campground. Accordingly, Waller and the
DOT’s own factual position inexorably tie the uneconomic remnant question to
the historical use of the property as a commercial campground and whether it may
be used in that manner in the future.

¶72 Consistent with the holding of Waller, a circuit court may consider
the property in context and consider the prior history of the use of the property and
how it may be used in the future. Id., ¶¶20, 22, 42, 97. Otherwise, the circuit
court’s determination would be divorced from the facts of this case, and such a
determination would be inconsistent with the requirements of Waller and WIS.
STAT. § 32.05(3m). From that, we conclude that the circuit court properly
considered evidence from both the DOT and Island Camping as to whether Island
Camping’s remaining property after the taking could continue to be operated post-
taking as a commercial campground. It then follows that the circuit court may
also determine what a reasonable person would do to operate a commercial
campground business at that property both before and after the taking. As a result,
the circuit court properly considered whether Moyer made business decisions
regarding Island Camping that were reasonable in these circumstances.

¶73 Finally, the DOT argues that two out-of-state authorities support its
position. We disagree. In Nall Motors, Inc. v. Iowa City, Iowa, 410 F. Supp. 111
(S.D. Iowa 1975), federal law applied to the question of whether there was an
uneconomic remnant. See Nall Motors, 410 F. Supp. at 114-16. In addition, the
circumstances in Nall Motors were materially distinguishable from this matter
because the purported uneconomic remnant was detached from the real estate that

30
No. 2019AP2284

housed plaintiff’s place of business. Id. at 114. Further, State of New Mexico ex
rel. New Mexico State Highway Department v. United States, 665 F.2d 1023
(U.S. Court of Claims 1981), is not germane to this appeal because it is relied on
by the DOT for the unremarkable proposition that an owner’s opinion is not
dispositive in determining whether a parcel of land is considered an uneconomic
remnant. Id. at 1028-29.15

¶74 In sum, we reject the DOT’s argument that the circuit court erred in
basing its decision in part on the remaining property’s use as a commercial
campground.

VII. Temporary Effects of Construction and Demolition.

¶75 The DOT next argues that temporary effects at the Island Camping
property caused by construction of the replacement bridge and demolition of the
previous bridge do not come within the meaning of the phrase “partial taking” as
that phrase is used in WIS. STAT. § 32.05(3m) and, therefore, cannot properly be
considered by a court in determining whether the “property remaining” is an
uneconomic remnant. For the following reasons, we agree with the DOT.

¶76 We begin with some basics as foundation for our analysis. Island
Camping does not dispute that the phrase “partial taking” concerns only

15
The DOT briefly relies on two out-of-state opinions for its contention that its
“nationwide review” shows that the circuit court’s decision was “unprecedented.” Those
opinions are not material to our analysis. In West Virginia Department of Transportation,
Division of Highways v. Dodson Mobile Home Sales & Services, Inc., 624 S.E.2d 468 (W. Va.
2005), the issue resolved in that appeal did not directly concern an uneconomic remnant. Rather,
the appeal concerned an award of attorney fees. Id. at 471. Further, Mississippi Transportation
Commission v. Buchanan, 99 So. 3d 230 (Miss. Ct. App. 2012), contains no substantive
discussion about uneconomic remnants. Id., ¶9.

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No. 2019AP2284

permanent effects to the “remaining property” rather than temporary effects
caused by the construction and demolition. As examples, in briefing in this court,
Island Camping has stated that “the circuit court agreed with DOT that temporary
effects of construction could not be considered,” and “[t]he record is also clear that
the circuit court admitted the evidence of construction activity for the limited
purpose that it might be evidence of permanent damage, not for showing
temporary effects.” That proposition is confirmed by case law. See, e.g.,
DeBruin v. County of Green, 72 Wis. 2d 464, 467, 469-70, 241 N.W.2d 167
(1976) (holding that a “partial taking” does not include “temporary
inconvenience” caused by “public improvements work”).

¶77 Next, the parties agree that it is the “partial taking” that must be the
cause of the “substantially impaired economic viability” under WIS. STAT.
§ 32.05(3m). Waller confirms the point. Section 32.05(3m) requires the partial
taking to be the cause of the substantially impaired economic viability; that is, the
partial taking must cause the change in the condition of the property so the
property becomes of substantially impaired economic viability. See Waller, 350
Wis. 2d 242, ¶¶100, 119.

¶78 As a result of those propositions just mentioned, the terms “partial
taking” and “property remaining” in the context of WIS. STAT. § 32.05(3m) require
that an uneconomic remnant determination be based only on effects of the partial
taking that remain after the partial taking is completed and that such effects will
continue to adversely affect the condition of the property and its uneconomic
viability in the future.

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No. 2019AP2284

¶79 Within that framework, Island Camping argues that the TLE and the
temporary effects of the construction and demolition are part of the “partial
taking.” We reject Island Camping’s arguments for the following reasons.

¶80 First, Island Camping argues that the circuit court considered the
drainage and noise problems to be permanent and, therefore, those “construction
impacts were actually part of the taking.” For this, Island Camping relies solely
on a statement by the circuit court during testimony that a potential consideration
in its decision may be whether effects are permanent. But, the circuit court did not
make a finding that temporary problems such as construction noise or drainage
would be permanent. In its argument, Island Camping does not point us to
evidence that the temporary problems caused by construction and demolition will
not end with the termination of the project. Indeed, Moyer testified that the
“majority” of damage to the business is attributed to the “construction period and
inconveniences associated with that,” and the campsites affected by the TLE will
be usable again after the construction.

¶81 Second, Island Camping argues that a partial taking need not be in
fee simple, and the circuit court properly considered in its decision a part of the
Island Camping property occupied temporarily by the TLE. However, this wholly
conclusory argument by Island Camping does not explain its rationale, and we
reject that argument for that reason. Pettit, 171 Wis. 2d at 646-47.

¶82 Finally, Island Camping argues that, at trial, the DOT considered the
“partial taking” to include the TLE. However, the specific portions of the record
relied on by Island Camping show nothing of the sort, and we disagree with that
assertion.

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No. 2019AP2284

¶83 Further, we agree with the DOT that the circuit court’s decision was
based in part on evidence regarding these temporary construction and demolition
problems. As we have already discussed in the Background section of this
opinion, the circuit court made no distinction in its decision concerning the
substantially impaired economic viability between those temporary problems and
the permanent effects of the partial taking of .64 acres. Moreover, the court
explicitly stated that the campground’s losses during construction “must be
considered in determining … whether or not there is economic viability … and to
determine substantially impaired economic viability.” The court also stated that it
is “required to look at what was lost as to economic viability during the taking and
during the construction period ….”

¶84 The circuit court made the temporary effects, such as drainage and
noise, from the construction and demolition manifest in its findings of fact and
determination that the remaining Island Camping property is of substantially
impaired economic viability. Accordingly, the circuit court’s decision was in error
because it based its determination in part on such evidence.

VIII. The Error Was Not Harmless.

¶85 Because the circuit court erred in basing its decision in part on those
temporary effects, the DOT requests that we remand this matter for a new trial. In
response, Island Camping argues that any error by the circuit court in admitting
evidence concerning the temporary problems and inconvenience was harmless.
Island Camping does not explicitly rely on WIS. STAT. § 805.18(2) in briefing in
this court. Nonetheless, that statute provides that a new trial shall not be granted
because of an error unless “the error has affected the substantial rights” of a party.
Sec. 805.18(2). Here, Island Camping contends that the substantial rights of the

34
No. 2019AP2284

DOT were not affected “because there was sufficient evidence in the record to
support a finding” that Island Camping’s remaining property was an uneconomic
remnant even without the evidence considered in error by the circuit court. For
the following reasons, we disagree.

¶86 An error affects the “substantial rights” of a party if there is “a
reasonable possibility that the error contributed to the outcome of the action or
proceeding at issue.” Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629
N.W.2d 698. An appellate court’s confidence in the outcome is stronger when the
evidence complained of “was peripheral or the outcome was strongly supported by
evidence untainted by error.” Id.; see also Nommensen v. American Cont’l Ins.
Co., 2001 WI 112, ¶49, 246 Wis. 2d 132, 629 N.W.2d 301 (the party alleging error
has the burden to show its substantial rights have been violated).

¶87 Regarding temporary problems caused by the construction and
demolition, Island Camping gives one sentence in its briefing in this court to
support its contention that the error of the circuit court was harmless. The first
reason given by Island Camping that the error was harmless is that “Johnson’s
expert opinion did not factor” the TLE “into his before and after value analysis.”
As previously noted, Johnson’s opinion that the property’s highest and best use
changed to privately owned recreational land was based on the permanent loss of
the boat ramp and the fish cleaning station. But, the circuit court rejected that
opinion of Johnson that the remaining Island Camping property’s highest and best
use is as private recreational property because that opinion “didn’t make sense.”
Also as previously noted, the circuit court, immediately after making that
statement in its ruling rejecting that opinion from Johnson, went on to state that
there is “some economic viability” in the property as a campground even though it
“certainly isn’t worth what it was at the time of the taking.” Accordingly,

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No. 2019AP2284

Johnson’s opinion does not “strongly support” the proposition that the circuit
court’s decision was untainted by error. Martindale, 246 Wis. 2d 67, ¶32.

¶88 The other reason given by Island Camping in its one sentence in
support of its argument is that the Island Camping property “permanently lost its
improvements.” Island Camping does not explain what those “improvements” are,
and we could reject that argument solely because it is unsupported. Pettit, 171
Wis. 2d at 646-47. Nonetheless, we will consider the purported permanently lost
improvements referred to in that sentence as the permanent loss of the boat ramp,
fish cleaning station, thirteen campsites, and seven slips at the marina. However,
Island Camping gives no citation to the circuit court’s decision to support its
assertion that the court came to the conclusion that the remaining Island Camping
property was an uneconomic remnant solely because of the permanent loss of
those improvements. With that deficit in Island Camping’s assertion, Island
Camping’s argument necessarily fails.

¶89 Moreover, it can be determined that an error did not affect the
substantial rights of a party if the error concerned evidence that was “peripheral.”
Martindale, 246 Wis. 2d 67, ¶32. As discussed above, the circuit court’s
consideration of the temporary effects of the construction and demolition was
intertwined with its conclusion that the remaining Island Camping property is an
uneconomic remnant. Accordingly, it cannot be stated that such evidence was
peripheral to the circuit court’s decision.

¶90 In sum, we conclude that the error of the circuit court was not
harmless, and a new trial is necessary.

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No. 2019AP2284

CONCLUSION

¶91 For the foregoing reasons, the judgment of the circuit court is
reversed, and this matter is remanded for further proceedings consistent with this
opinion.

By the Court.—Judgment reversed and cause remanded with
directions.

Not recommended for publication in the official reports.

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