Posted by: Patricia Salkin | February 28, 2020

WI Supreme Court Holds Statute on Town-Road Standards Did Not Create a Private Cause of Action

This post was authored by Matthew Loescher, Esq.

DSG, condemnee, used to own approximately 92 acres of land in the Town of Perry, but now owns just over 80 acres after the Town used its condemnation power to take the difference (12.13 acres) to create what became known as the Hauge Log Church Historic District Park. Following the condemnation, the Park ran along the eastern edge of DSG’s property instead of County Highway Z. To prevent DSG’s property from being landlocked, the Town’s condemnation petition promised to grant DSG a permanent access easement over a new field road it committed itself to building over the northern-most part of the Park. After entering partial summary judgment for condemnor, the Circuit Court, determined that claim preclusion barred condemnee’s claim. Condemnee appealed, and the Court of Appeals affirmed.

On appeal, the Town first contended DSG could have asserted its claim regarding the sufficiency of the new field road in the Rightto-Take case. Despite this, neither the Town nor the court of appeals has provided any authority or reasoning to suggest DSG could have litigated its current issues in the Right-to-Take Case. As such, the Town failed to establish that the Right-to-Take Case barred DSG’s current claim that the Town had not honored its road-building obligations.
Next, the Town argued the Just Compensation Case also served as a bar against DSG’s claims. The record reflected that the purpose of the road was not just to provide DSG access to its remaining land, but also to serve the Park, as provided by the Hauge Church Park Regulations. Thus, the court found the construction of the new field road was part of the public improvements anticipated by the condemnation petition. Additionally, the Town’s argument that DSG already litigated the Town’s faithfulness to its road-building obligation, depended on the significance of the engineering report DSG introduced in the Just Compensation Case. Despite this, the engineering report opined on an issue the circuit court could not entertain. Specifically, the report questioned whether the Town could build either a public road or a private driveway on the easement described in the condemnation petition that would conform to all applicable rules and regulations. Accordingly, the court held that neither the Right-to-Take Case nor the Just Compensation Case barred DSG’s Petition Standards Claim, its Town Road Claim, or its Damages Claim.

Lastly, as Wis. Stat. § 82.50 did not impose on the Town a mandatory and non-discretionary obligation to improve the Parkway to town road standards, the court found that DSG would not have a cognizable claim of right until, at the earliest, the town’s discretionary authority resolved to a particular course of action. Since that action has not yet occurred, DSG’s Town Road Claim was not ripe for review. The court therefore reversed the decision of the court of appeals and remanded the matter to the circuit court for further proceedings on the Petition Standards Claim.

DSG Evergreen Family Limited Partnership v. Town of Perry, 939 N.W.2d 564 (WI 2/27/2020)

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