Four Minocqua property owners have filed a lawsuit against the Wisconsin Department of Transportation over the agency’s proposed Hwy. 51 reconstruction project, claiming a violation of their state and federal constitutional rights and seeking injunctive relief.
Michael J. Meyers, Max Building Investments, LLC, Cletus Schey, and Ring Kings, Inc., filed their complaint through attorney John Kassner last week in Oneida County circuit court. They are seeking a judicial review of the validity of Trans 231.02 of the state administrative code and a declaration of their rights.
Specifically, the plaintiffs are asking the court to declare that the way the DOT is applying Trans 231 violates provisions of the Wisconsin constitution and exceeds its statutory authority. They also maintain the department’s actions violate the guarantees of the Fifth and Fourteenth Amendments to the U.S. Constitution.
The petitioners are seeking temporary injunctive relief pending the court’s final ruling, in effect a stay of permit revocation administrative proceedings currently under way, as well as preliminary and/or permanent injunctive relief against the DOT’s removal or relocation of driveways without just compensation.
The first phase of the reconstruction project in Minocqua is slated to begin next year. The highway would be widened, new street lighting would be erected, the DOT would enhance pedestrian and bicycle accommodations, and reconstruct intersections.
In addition, and what is the point of conflict, the agency is planning to modify access points, meaning many driveways will be eliminated. The DOT’s goal is to slim down a property’s access to the highway to as few points as possible.
The foundation of the case against the state tracks back to a previous Hwy. 51 reconstruction project, this one undertaken in 1970.
At the time, the complaint asserts, the properties already had driveways on to Hwy. 51. The DOT added curb and gutter improvements along the highway, including along the frontage of the properties.
In connection with the 1970 reconstruction project, the department unilaterally issued permits to the plaintiffs’ predecessors in title, “allegedly” pursuant to Wis. Stat. §86.07(2) and Chapter Hy 31 of the administrative code (the predecessor to Chapter Trans 231), the complaint states. The purpose of the permits was to allow those property owners to keep their pre-existing driveways.
According to the complaint, the DOT – which back then was the Wisconsin Highway Commission – promulgated Chapter Hy 31 to provide standards and a process for issuing permits described in Wis. Stat. §86.07(2), “for persons wishing to place, construct or alter driveways on to state highways.”
For a permit to be issued, the complaint states, the rule requires that an applicant agree to various conditions, including that “he or she represents all parties in interest,” and that any driveway or approach constructed by the applicant “is for the bona fide purpose of securing access to his or her property. . . .”
Significantly, the complaint continues, the DOT maintains the permits it issued in 1970 were revocable based on language contained on the reverse side of those permits and/or pursuant to the rule.
Critically, the complaint points out, statute §86.07(2) provides that any person wishing to create or alter a driveway on to a state highway has to apply for a permit. But, the complaint asserts, none of the previous property owners wished to create or alter their driveways and none applied for a permit.
“Upon information and belief, Plaintiffs’ predecessors in title did not wish to place, construct or alter their driveways on to Highway 51, and consequently, they did not apply for, request, want or consent to the Permits unilaterally issued by WisDOT in 1970,” the complaint states.
Now, the plaintiffs observe, the DOT is revoking the 1970 permits it unilaterally issued.
“WisDOT has revoked the 1970 Permits for the driveways to the Properties of Plaintiffs Michael J. Meyers, Max Building Investments, LLC, without the payment of just compensation to Plaintiffs,” the complaint states. “WisDOT has stated that it will revoke the Permits it unilaterally issued in 1970 pertaining to the driveway to the Properties of Plaintiffs Ring Kings, Inc. and Cletus Schey. With the exception of Plaintiff Michael Meyers’ Property, WisDOT has unilaterally issued new permits for the new or relocated driveways referenced herein, purportedly pursuant to Chapter Trans 231, Wisconsin Administrative Code.”
The DOT intends to remove access to the Meyers’ property from Hwy. 51, the complaint observes.
As with the old permits, the plaintiffs continue, the new permits are unilaterally issued without being applied for and contain language that purports to make the permits revocable, to empower the agency to remove the driveways, and to declare that the permit does not create a right of access for the properties.
None of which the department has the authority to do, the complaint contends.
“WisDOT is not statutorily empowered to take any of the actions described ... without paying Plaintiffs just compensation,” the complaint states.
And the department is not intending to pay just compensation, the complaint continues.
“WisDOT’s plans include closing some of the driveways to the Properties and requiring some property owners to use a neighboring property’s driveway to access their Properties from Highway 51,” the complaint states. “WisDOT has not paid or offered to pay any compensation for the closing, removal or relocation of Plaintiffs’ driveways in connection with the Proposed Reconstruction Project.”
With regard to the new permits it has issued, the petitioners state, the agency has not paid or offered to pay any compensation for the revocation of the 1970 permits, for the removal of any driveways to the properties, or for the declaration that the plaintiffs do not have a right of access to their properties.
The bottom line is, the complaint states, the plaintiffs do not wish to place, construct or alter their driveways, and thus have not applied for, requested, wanted or consented to the permits unilaterally issued by the DOT. Neither have they agreed to have the agency represent their interests in relation to the permits unilaterally issued.
The plaintiffs have been notified that they may file an administrative appeal of the DOT’s revocation of the 1970 permits, and Meyers and Max Building Investments, LLC, have done so, the complaint states.
Nonetheless, the complaint argues, the hearing examiner presiding over the appeals lacks the authority to rule and issue orders on an array of issues concerning the permits, including whether the DOT had the authority to unilaterally issue the 1970 permits in the first place; whether it can rely on language contained in the 1970 permits to revoke those permits for driveways in existence prior to the issuance of the permits; whether a partial taking of the properties without compensation has occurred; and whether Trans 231 is valid as used by the DOT.
Violates the state constitution
The plaintiffs are contending that the DOT’s actions constitute a taking of private property for public use without just compensation, contrary to Article I, §13 of the Wisconsin Constitution and the Fifth and Fourteenth Amendments to the U.S. Constitution, and they say the actions are also in violation of state statutes.
“Prior to the issuance of the Permits in 1970, Plaintiffs’ predecessors in title had an ‘existing right of access to highway from abutting land’ as those terms are used in Wis. Stat. §32.09(6)(b) and construed by applicable case law, and had the legal right to use and enjoy those rights of access,” the complaint states.
The 1970 permits were improperly issued because the conditions required for the issuance of those permits under Wis. Stat. §86.07(2) and the rule were not present. In other words, the complaint contends, the DOT did not represent all the parties in interest, the driveways to which the permits relate were not constructed to secure access to WisDOT’s property, the plaintiffs’ predecessors in title did not wish to place, construct or alter their driveways on to Hwy. 51, and consequently, did not apply for, request, want or consent to the issuance of the 1970 permits.
The permits unilaterally issued by the agency in connection with the proposed reconstruction are similarly invalid, the complaint contends.
Thus, the revocation of the 1970 permits and unilateral issuance of the new permits has deprived or restricted Meyers’ and Max Building Investments, LLC’s existing access rights and has resulted in a partial taking of their property without just compensation, the complain asserts.
Likewise, the DOT’s planned revocation of the 1970 permits and unilateral issuance of the new permits will deprive or restrict Ring Kings, Inc.’s and Cletus Schey’s existing access rights and will result in a partial taking of their property without just compensation.
Exceeding statutory authority
Wisconsin law provides that no person may make any excavation or fill or install any culvert or make any other alteration in any highway, including placement, construction or alteration to a person’s driveway, without a permit, the complaint states, observing that the prohibition does not apply to the agency in the performance of its duties.
The statutes authorized the DOT to promulgate rules for issuing permits to persons seeking to perform such alterations, including placement, construction or alteration to a person’s driveway, the complaint states, and the permits contemplated by the statute are for property owners seeking to make alterations to their access to and from a state highway.
But the statute does not give the agency authority to unilaterally apply for and issue permits to property owners who have not requested them, the complaint asserts. Neither does the law require that plaintiffs’ predecessors in title apply for permits to keep their pre-existing driveways or access rights, and it did not do so in 1970, either.
According to the complaint, the statute also did not require that plaintiffs’ predecessors in title waive or compromise their rights to their pre-existing driveways and their rights to their pre-existing rights of access and does not require that plaintiffs apply for permits to keep their existing driveways or access rights.
“WisDOT unilaterally issued the 1970 Permits purportedly pursuant to the Rule even though the Plaintiffs’ predecessors in title already had driveways on to Highway 51, did not wish to place, construct or alter their driveways on to Highway 51, and consequently, did not apply for, request, want or consent to the issuance of the those permits,” the complaint states.
The same goes for the newly issued permits, too, the plaintiffs argue.
“WisDOT contends that, through its unilateral issuance of permits under the Rule, it can change the character and extent of Plaintiffs’ access rights, making those access rights revocable, and thereby enabling WisDOT to take private property without paying just compensation for the property taken,” the complaint states. “WisDOT’s actions alleged herein exceed its statutory authority under Wis. Stat. §86.07(2).”
Finally, the complaint contends, by partially taking plaintiffs’ properties for public use without payment of just compensation, and by exceeding its authority in doing so, the DOT has violated the plaintiffs’ constitutionally protected rights to just compensation and substantive and procedural due process under the U.S. constitution.
“The Fifth Amendment to the U.S. Constitution provides that private property shall not be taken for public use, without just compensation,” the complaint states. “The Fourteenth Amendment to the U.S. Constitution provides that ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of . . . property, without due process of law . . . .’”
Richard Moore may be reached at email@example.com.