                                                               2018 WI 70

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:                2016AP537
COMPLETE TITLE:          Adams Outdoor Advertising Limited Partnership,
                                   Plaintiff-Appellant-Petitioner,
                              v.
                         City of Madison,
                                   Defendant-Respondent.

                               REVIEW OF DECISION OF THE COURT OF APPEALS
                              Reported at 377 Wis. 2d 728, 902 N.W.2d 808
                                          (2017 – unpublished)

OPINION FILED:           June 19, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 14, 2018

SOURCE OF APPEAL:
   COURT:                Circuit
   COUNTY:               Dane
   JUDGE:                Richard G. Niess

JUSTICES:
   CONCURRED:
   DISSENTED:            R.G. BRADLEY, J., dissents, joined by
                         ROGGENSACK, C.J., and KELLY, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-appellant-petitioner, there were briefs
filed    by       Eric   M.   McLeod,   Jeffrey   L.   Vercauteren,   Joseph   S.
Diedrich, and Husch Blackwell LLP, Madison.                 There was an oral
argument by Eric M. McLeod.


       For the defendant-respondent, there was a brief filed by
Amanda J. Kaiser, Evan B. Tenebruso, and Boardman & Clark LLP,
Madison.        There was an oral argument by Evan B. Tenebruso.


       An amicus curiae brief was filed on behalf of the Outdoor
Advertising Association of Wisconsin by Thomas S. Hornig, Kraig
A. Byron, and von Briesen & Roper, S.C., Madison.
    An amicus curiae brief was filed on behalf of League of
Wisconsin   Municipalities   by   Daniel   M.   Olson   and   League   of
Wisconsin Municipalities, Madison.




                                   2
                                                                            2018 WI 70
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.   2016AP537
(L.C. No. 2014CV2497)

STATE OF WISCONSIN                                :             IN SUPREME COURT

Adams Outdoor Advertising Limited Partnership,

            Plaintiff-Appellant-Petitioner,                              FILED
      v.                                                            JUN 19, 2018
City of Madison,                                                       Sheila T. Reiff
                                                                    Clerk of Supreme Court
            Defendant-Respondent.




      REVIEW of a decision of the Court of Appeals.                    Affirmed.



      ¶1    ANN WALSH BRADLEY, J.              The petitioner, Adams Outdoor

Advertising Limited Partnership, seeks review of an unpublished

per   curiam   decision      of     the   court    of    appeals      affirming       the
circuit    court's    grant    of    summary      judgment      dismissing        Adams'

takings claim against the City of Madison.1                  The court of appeals

concluded   that     Adams    failed      to   show   that    the    City     took    any

property    requiring        just     compensation.             Specifically,           it


      1
       Adams Outdoor Advert. Ltd. P'ship v. City of Madison, No.
2016AP537, unpublished slip op. (Wis. Ct. App. July 20, 2017)
(affirming judgment of the circuit court for Dane County,
Richard G. Niess, Judge).
                                                                         No.    2016AP537



determined that Adams failed to demonstrate a cognizable right

that underlies its asserted protected property interest.

       ¶2      Both parties agree that the City did not physically

take any of Adams' property.               They likewise agree that the City

did    not     enact   any    zoning     regulation      restricting      the    use   of

previously acquired property interests.                    Instead, Adams asserts

that     its    property      was    taken       when   the     City   constructed     a

pedestrian bridge over the Beltline Highway that blocked the

visibility from the highway of the west-facing side of Adams'

billboard.

       ¶3      According      to    Adams,       the    City    took    its     property

interest in its "vested rights in the legal nonconforming use"

of its billboard.            It alleges that a taking occurred because the

City deprived it of all economically beneficial use of the west-

facing side of its billboard, and therefore Adams is entitled to

just compensation.

       ¶4      The City disagrees, arguing that Adams has failed to

identify a recognized right sufficient to support its taking
claim.         Specifically, the City contends that property owners

have no right to continued and unobstructed visibility of their

property from a public road.

       ¶5      Like the court of appeals, we determine that a right

to visibility of private property from a public road is not a

cognizable right giving rise to a protected property interest.

Because      Adams'    claim,       in   essence,       rests    on    asserting    this

unrecognized right, its takings claim must fail.                        See Wis. Med.


                                             2
                                                                            No.     2016AP537



Soc'y, Inc. v. Morgan, 2010 WI 94, ¶38, 328 Wis. 2d 469, 787

N.W.2d 22.

       ¶6        Accordingly, we affirm the decision of the court of

appeals.

                                                 I

       ¶7        The billboard at issue in this case is located near

the Beltline Highway in Madison on a single, irregularly shaped

parcel of land, less than one-half of an acre in size.                              It is a

single pole sign structure with two opposite-facing panels that

was built in approximately 1995.                     One panel faces east and the

other       west,    allowing       for    separate     and      distinct    advertising

messages.

       ¶8        Adams    bought     the    irregularly     shaped     parcel       of    land

containing        the      billboard       for   $200,000     in    2007.         No     other

building or structure is located on Adams' land.                         Adams has not

made       any   substantial        improvements      to   its     billboard       since    it

purchased        the      parcel.         Pursuant    to    Madison    City       Ordinance

§ 31.11(1),         the    billboard       is    nonconforming.2        As        such,    the
billboard is permitted to remain, but Adams cannot modify its

height or location.




       2
       Madison General Ordinance § 31.11(1) provides that "new,
relocated and replacement advertising signs are prohibited."
Madison, Wis., Gen. Ordinance § 31.11(1) (2015).         However
"[e]xisting advertising signs are nonconforming and permitted to
remain" in specified districts, including certain commercial and
industrialized districts. Id.


                                                 3
                                                                   No.      2016AP537



       ¶9     In 2013, pursuant to an agreement with the Wisconsin

Department      of    Transportation,      the   City   built    the   Cannonball

Bridge (the bridge), a pedestrian and bicycle overpass crossing

the Beltline Highway.            The bridge is located adjacent to, but

not on, Adams' property.

       ¶10    The bridge obstructs the view of the west-facing side

of the billboard from Beltline traffic.3                  Adams asserts that

since the construction of the bridge, it has not been able to

sell       advertising     space    on    the    west-facing     panel      of   its

billboard.       The view from the east-facing side of the billboard

remains unobstructed, and Adams continues to sell advertising

space on the east-facing panel.

       ¶11    Adams'       appraiser      determined     that      before        the

construction         of   the   bridge,   the    estimated     value   of    Adams'




       3
       Adams states that the bridge "completely" blocks the view
of the west-facing sign. However, the City explained:

       [T]he west-facing side of the sign is not completely
       obscured. I've seen it several times myself. I know
       what it says. But the legal argument doesn't change,
       whether it's partially obscured or totally obscured.
       So if Adams wants for the summary judgment record to
       say that it's totally obscured, that's fine with me
       for purposes of the summary judgement decision.

At oral arguments before this court, the City reiterated that
its stipulation that the bridge "completely" obstructs the view
of the billboard was for the purposes of summary judgment only.


                                          4
                                                                  No.    2016AP537



property     was   $1,460,000.     After     the   bridge   was   erected,      it

asserts that the value of Adams' property declined to $720,000.4

     ¶12     Adams filed a complaint alleging in relevant part5 that

it   has     "constitutional     protected    property      rights      in   [its]

[p]roperty and [s]ign," and that the City has "occupied [its]

[p]roperty and fully obstructed the west-facing [s]ign . . . ."

It asserts that the City's construction of the bridge deprived

Adams of substantially all beneficial uses of its property and

sign.      Therefore, according to Adams, it is entitled to initiate

an inverse condemnation action pursuant to Wis. Stat. § 32.10

(2013-14)6 because the City took its property and sign without

compensation.

     4
       The City's appraiser disputes those figures, concluding
that Adams' appraiser "overstate[d] the diminution value" in the
appraisal prepared for the purposes of this lawsuit. According
to the City's appraiser, it was "hard pressed to understand
th[e] substantial change in real estate market value" asserted
by Adams' appraiser because Adams purchased the property for
$200,000 in 2007, yet it was assessed at over $1.4 million seven
years later when no substantial improvements had been made to
the property.
     5
       In its amended complaint, Adams asserted a variety of
other claims against the City related to the construction of the
bridge——namely trespass, nuisance, equal protection and due
process   violations,   and   a    violation   of   the   Highway
Beautification Act. All were rejected by the lower courts. The
only claim remaining before this court is Adams' takings claim.
     6
       Wisconsin   Stat.   § 32.10——the  inverse   condemnation
procedure——is the legislative direction for fulfilling the
mandate of the just compensation clause of the Wisconsin
Constitution.    E-L Enters., Inc. v. Milwaukee Metro. Sewerage
Dist., 2010 WI 58, ¶36, 326 Wis. 2d 82, 785 N.W.2d 409.      It
provides in relevant part:

                                                                     (continued)
                                      5
                                                                         No.    2016AP537



       ¶13   The    City    moved    for      summary       judgment,    arguing      that

Adams' takings claims must fail because it does not identify a

recognized property right taken by the City.                       Specifically, the

City   contends     that     there      is   no   property      right    to    continued

visibility of a billboard.              Further, the City argues that Adams

cannot prove that the City took its property because there was

neither an actual physical occupation of Adams' property by the

City, nor did the City deprive Adams of all or substantially all

of the beneficial uses of its property.

       ¶14   The circuit court granted the City's summary judgment

motion.      Relying on Randall v. City of Milwaukee, 212 Wis. 374,

249 N.W. 73 (1933), it concluded that "there is no property

right at issue that has been taken by the placement of this

bridge    over     the   highway     in      close    proximity    but    not    on    the

property     belonging       to   the     plaintiff"        because     "[t]here's      no

property right to be seen."

       ¶15   It further explained that "[w]hat we have instead is a

consequential       or     incidental        result    of    the   construction        and


       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, to institute
       condemnation proceedings, shall present a verified
       petition to the circuit judge of the county wherein
       the land is situated asking that such proceedings be
       commenced. . . .   The court shall make a finding of
       whether the defendant is occupying property of the
       plaintiff without having the right to do so. . . .

All subsequent references to the Wisconsin Statutes are to the
2013-14 version unless otherwise indicated.


                                              6
                                                                            No.    2016AP537



maintenance        [of      the     bridge] . . . which                 is . . . not        a

protectable interest that is if invaded subject to compensation

for a taking."        Finally, the circuit court determined that Zealy

v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996),

requires that courts "value the billboard as a whole and not one

side versus the other.             And as a whole, it cannot be said that

all or substantially all of the beneficial use of this property

has been obstructed."

    ¶16     The court of appeals affirmed in an unpublished per

curiam opinion.           Like the circuit court, the court of appeals

relied on Randall, 212 Wis. 374, to reach its conclusion that

obstruction      of   a   view    is    not        a   taking    of    private    property.

Adams    Outdoor      Advert.     Ltd.    P'ship         v.     City   of   Madison,      No.

2016AP537, unpublished slip op., ¶¶8-10 (Wis. Ct. App. July 20,

2017).

    ¶17     Adams petitioned this court for review.

                                              II

    ¶18     In   this      case    we    are       asked   to    review     the   court    of
appeals' decision affirming the circuit court's grant of summary

judgment in favor of the City, dismissing Adams' takings claims

against the City.

    ¶19     This      court       reviews          a    decision       granting     summary

judgment independently, applying the same methodology as does

the circuit court.            Shugarts v. Mohr, 2018 WI 27, ¶17, 380

Wis. 2d 512, 909 N.W.2d 402.                  "Summary judgment is appropriate

where there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law."                            Id.
                                               7
                                                                                  No.     2016AP537



                                                  III

       ¶20     The United States and Wisconsin Constitutions require

payment      of     just    compensation          for    private      property          taken    for

public       use.          The    Fifth       Amendment         to    the     United       States

Constitution         provides         in    relevant     part:        "nor    shall       private

property be taken for public use, without just compensation."

U.S. Const. amend. V.                  Article I, Section 13 of the Wisconsin

Constitution provides:                     "The property of no person shall be

taken for public use without just compensation therefor."                                       Wis.

Const. art. I, § 13.7

       ¶21     In    order       to    maintain         an   unconstitutional             takings

claim,       four    factors      must       be    demonstrated:            (1)    a     property

interest exists; (2) the property interest has been taken; (3)

the taking was for public use; and (4) the taking was without

just       compensation.          Wis.      Med.       Soc'y,   328    Wis.       2d    469,     ¶38

(citing Wis. Retired Teachers Ass'n v. Emp. Tr. Funds Bd., 207

Wis. 2d 1, 18–24, 558 N.W.2d 83 (1997)).

       ¶22     It is undisputed that the alleged taking here was for
public use and the City did not compensate Adams for any damages

sustained due to the construction of the bridge.                                  Accordingly,

the two disputed inquiries before this court are (1) whether a


       7
       Wisconsin courts generally apply the same standard when
determining whether an unconstitutional taking has occurred
under the Wisconsin and United States Constitutions. Wis. Med.
Soc'y, Inc. v. Morgan, 2010 WI 94, ¶38, 328 Wis. 2d 469, 787
N.W.2d 22 (citing Zealy v. City of Waukesha, 201 Wis. 2d 365,
374, 548 N.W.2d 528 (1996)).


                                                   8
                                                                          No.    2016AP537



property interest exists and, if so, (2) whether that property

interest has been taken.            Wis. Med. Soc'y, 328 Wis. 2d 469, ¶38.

                                             A

      ¶23     We must first identify the precise property interest

at   issue.        Once    identified,       we        examine    next    whether    that

property interest exists, that is, whether it is based on a

right recognized under our takings jurisprudence.

      ¶24     Adams   asks      this   court      to    characterize      the    property

interest      at   stake     as    the   preexisting         right       to    the   legal

nonconforming use of its property.                     The City contends that the

property    interest       in     question       is    grounded    on    the    right   to

continued "visibility of private property from a public road."8



      8
       The dissent errs by relying on a claim that is not made
and facts that do not exist.    It asserts that "the permit for
the west-facing billboard" is the property interest at issue.
Dissent, ¶47.     This alternative definition of the property
interest was first proposed in an amicus brief to this court by
the Outdoor Advertising Association of Wisconsin. Neither party
raised or briefed this alternative framing of the issue during
the nearly four years of litigation in this matter.

     In its complaint and amended complaint in the circuit
court, Adams consistently and expressly framed its property
interest as the "property rights in the [p]roperty and [s]ign."
There is no mention of the billboard "permit" in Adams' amended
complaint, or in its briefs to the court of appeals or this
court. As further illustration that this case has nothing to do
with a permit, neither party saw it necessary to introduce the
permit into evidence.    There is no billboard permit in this
record.

     Indeed, at oral arguments Adams conceded several times that
it did not make a claim in this case that its billboard permit
was the property interest that was taken:

                                                                              (continued)
                                             9
                                                        No.   2016AP537




    The court:   You're not claiming here, are you, that
    you have a property interest in the permit? I didn't
    see it in your complaint, I didn't see the word permit
    in your briefs, so I didn't think you were claiming
    that.

    Adams: I think we do have a property interest in the
    permit. But I don't think that the property interest
    in the permit has been specifically taken in this
    case.    The nature of the takings claim is the
    obstruction of the sign face (emphasis added).

    The court:    . . . You're not claiming that in this
    case that the property that you want compensation for
    is the permit? Is that correct?

    Adams:     Not——That's   correct,   your   honor.         Not
    specifically.

     Certainly Adams has forfeited any claim that the billboard
permit constitutes a property interest. State v. Ndina, 2009 WI
21, ¶¶29–30, 315 Wis. 2d 653, 761 N.W.2d 612.   Additionally, we
decline to address this argument raised for the first time in an
amicus brief, as it is not properly before us.    Cty. of Barron
v. LIRC, 2010 WI App 149, ¶30, 330 Wis. 2d 203, 792 N.W.2d 584
(citations omitted) (explaining that "courts need not consider
arguments raised only by amici").     We save such a claim for
another day.

     The dissent also errs by relying heavily on facts not
present in the record.   Specifically, the dissent asserts that
the City of Madison treats the two sides of its billboard as
separate property by requiring an individual permit for each
side, rather than issuing a single permit that covers the
billboard structure as a whole. See dissent, ¶49. Indeed, this
unsubstantiated factual allegation permeates the dissent's
analysis. See id., ¶¶47, 55-56, 58-61, 63-69, 72-74.

     At oral argument, the City disputed these alleged facts
explaining that they are "not in the record" and that the City
did not "believe that it's true" that separate permits were
issued for each side of the billboard. The City explained:

    [Counsel for Adams] stated in the oral argument today
    [that] it is a critical piece of the analysis that the
    City issued separate permits for the separate faces of
                                                    (continued)
                               10
                                                                 No.        2016AP537



      ¶25   Adams disagrees with the City's characterization of

its   property   interest    as    relying    on   a   "right   to     be    seen."

Before this court Adams asserts that "this case is not about a

freestanding right to be seen" and that "[t]he outcome of this

case does not depend on whether any generalized right to be seen

exists."

      ¶26   In   contrast,        before     the   circuit      court,        Adams

repeatedly emphasized the import of the right to be viewed when

describing the property interest at issue:

      What is the protected interest?       It's the legal
      nonconforming use, the vested rights that we have in
      maintenance of that use.   And what is the use?   It's
      the display of advertising signs that can be viewed by
      the public.
Adams further explained to the circuit court that "[t]he nature

of this use is to be viewed.          If there's no right to be viewed,

then it is illusory that the rights, the pre-existing use that

we've got is illusory.       If it can't be viewed, we have no value.

In this context it has to be a protected property right."

      ¶27   At oral arguments before this court, counsel for Adams

stated that "[t]he issue that has been presented in this case is


      the sign.    Well there's a critical error in that
      argument. That being that that is not in the record.
      And I don't believe that it's true.      There is some
      discussion in the amicus brief from the [Outdoor
      Advertising] Association regarding some law that the
      Association says would allow the City to do that, but
      there is nothing in the record to indicate that the
      City has actually treated the billboard that way and I
      don't believe that the City has.        So that is a
      critical——critical problem.


                                      11
                                                                 No.     2016AP537



whether Adams has the right to continue a preexisting use of its

property, the sole purpose of which is to display advertising

and be seen."     Counsel for Adams explained further that:

       In this case the use that we are seeking to protect is
       the [] display of the billboard which is to be seen.
       I am not trying to suggest that our ability to be seen
       is not a critical piece of this but it is a critical
       piece of it by virtue of the specific use here, not
       because we are seeking to establish a right to be
       seen.
Thus, on one hand Adams disclaims that it is relying on a right

to visibility of its billboard from a public road.               On the other

hand, Adams consistently refers to the "critical" fact that this

case would not be before this court but for the fact that the

sole harm it has suffered is to the visibility of its private

property from a public road.

       ¶28   We decline to characterize the property interest here

in the overly broad and generalized fashion advocated by Adams.

Such   an    expansive    framing    begs   the   question:      what    is   the

essence of the property interest in dispute?

       ¶29   Adams'      billboard    continues     to   enjoy     its      legal

nonconforming status.         It is undisputed that the City neither

physically altered Adams' property in any way, nor did it enact

any regulation restricting the use of Adams' property.                  Thus, we

determine that the essence of Adams' asserted property interest

is based on a right to visibility.                But for the reduction in

visibility of Adams' billboard from a public road, there would

be no asserted takings claim.




                                       12
                                                                              No.   2016AP537



                                            B

       ¶30    Having determined that the property interest asserted

here is based upon a right of visibility of private property

from a public road, we turn next to address whether it is a

recognized property right under our takings jurisprudence.                               See

Wis. Med. Soc'y, 328 Wis. 2d 469, ¶38; Luber v. Milwaukee Cty.,

47 Wis. 2d 271, 278, 177 N.W.2d 380 (1970) (explaining that to

determine whether there has been a taking, "a court of necessity

must define property and determine what interests in property

are significant enough to be protected from a taking without

compensation").

       ¶31    The City asserts——and we agree——that Randall, 212 Wis.

374,   is     dispositive       here.      It    provides        that   "[a]lthough       [a

property owner] may sustain consequential damages in so far as

[a] street improvement will somewhat obstruct or interfere with

ingress and egress, and the view to and from their land to the

vehicular traveled portion of the street, that is not a taking

of private property for public use . . . ."                      Id. at 382.
       ¶32    In     Randall,     the    City        of    Milwaukee          proposed    to

construct       an    underground       pedestrian         tunnel       and     a   shelter

covering the entrance to the tunnel that would abut Randall's

property.            Id.   at    376-77.         The      proposed       shelter       would

substantially obstruct and interfere with the ingress and egress

to   Randall's       property     and   the     view      from    the   street      of   any

building erected on Randall's property.                      Id. at 377.            Randall

argued       that    the   construction         of   the    subway       shelter      would
constitute an unconstitutional taking because it would impair
                                           13
                                                        No.   2016AP537



Randall's property rights of "easements of access and view."

Id. (emphasis added).

    ¶33    The   Randall   court    disagreed,   explaining   that   a

property owner's rights "as an abutting owner are subject to

such public street use and purpose as the location of the street

requires."   Id. at 378.   As the Randall court explained:

    [A]cts done in the proper exercise of governmental
    powers, and not directly encroaching upon private
    property, though their consequences may impair its
    use, are universally held not to be a taking within
    the meaning of the constitutional provision. They do
    not entitle the owner of such property to compensation
    from the state or its agents, or give him any right of
    action.   This is supported by an immense weight of
    authority. That has been the rule in this state.
212 Wis. at 382 (internal quotations omitted).

    ¶34    Randall reasoned that public thoroughfares, including

highways, are dynamic spaces that must change and adapt over

time.   Id. at 378.   It explained:

    Lands are set aside for public streets and highways,
    not for the present, with its necessities and modes of
    use, but for all time, with all the added demands that
    may be made upon the public ways within the scope of
    their original design, in the course of natural
    development that is constantly going on.
Id. (citation omitted).     Thus, "the public rights in [streets]

are plainly paramount" to those of private landowners.         Id. at

380 (citation omitted).

    ¶35    Adams counters that Randall's conclusion that there is

no recognized right to be seen from the street is limited to

cases that deal with prospective, undeveloped uses of property
where no vested rights were taken and nonconforming use status


                                   14
                                                                          No.     2016AP537



was not at issue.         We disagree.          Neither Randall, nor various

cases   citing      Randall,    contain       such   limiting     language.             See,

e.g., Howell Plaza, Inc. v. State Highway Comm'n, 92 Wis. 2d 74,

81, 284 N.W.2d 887 (1979); More-Way N. Corp. v. State Highway

Comm'n, 44 Wis. 2d 165, 170, 170 N.W.2d 749 (1969); Wis. Power &

Light   Co.    v.    Columbia    Cty.,    3     Wis. 2d 1,      6,    87        N.W.2d 279

(1958).

      ¶36     Furthermore, it is well-established that "there is no

property right to the flow of traffic along a highway."                             Surety

Sav. & Loan Ass'n v. State Dep't of Transp. Div. of Highways, 54

Wis. 2d 438,     444,   195     N.W.2d 464       (1972);   see       also       118th    St.

Kenosha, LLC v. Wis. DOT, 2014 WI 125, ¶31, 359 Wis. 2d 30, 856

N.W.2d 486      ("The   State     may     exercise      its      police         power    to

authorize     the    relocation    of     a    highway"    and       is    "not    always

required to compensate all who are adversely affected by the

relocation."); Hoffer Props., LLC v. State, DOT, 2016 WI 5, ¶26,

366     Wis. 2d 372,      874     N.W.2d 533          (explaining           that        "the

legislature enabled DOT to periodically change the terms and
conditions by which any person——abutter or otherwise——has access

to a controlled-access highway").

      ¶37     Given that a private property owner does not have a

right to the continued flow of traffic from a public road, it

reasonably follows that it does not have a property interest in

the continued visibility of its property from that road.                                See,

e.g., Troiano v. Colo. Dep't of Highways, 463 P.2d 448, 455

(Colo. 1969) (explaining that because "a property owner has no
right to have the traveling public pass his property, logically
                                          15
                                                                              No.     2016AP537



it would be inconsistent to say that a property owner has a

right to have the traveling public afforded a clear view of his

property"); State, Idaho Transp. Bd. v. HI Boise, LLC, 282 P.3d

595, 603 (Idaho 2012) ("If . . . a property owner does not have

a   property      right      in    traffic       flow       around     his    property,       it

directly follows that he cannot assert a property right in that

same traffic's ability to see his property"); State v. Schmidt,

867 S.W.2d 769, 774 (Tex. 1993) ("Just as a landowner has no

vested interest in the volume or route of passersby, he has no

right to insist that his premises be visible to them.").

      ¶38     In sum, private property owners abutting public roads

are aware that public roads are subject to change.                            See Randall,

212 Wis. at 378.              There is an ever-present risk that public

roads may be improved in any number of ways.                            Id.       Streets are

routinely expanded or relocated and can be elevated or modified

by the construction of electrical poles, signage, or pedestrian

shelters.       Id. at 379-82.               Often roads can be closed for an

extended      period    of    time       due    to    construction.           A     myriad    of
examples exists.

      ¶39     Property owners are on notice that such changes may

alter or obstruct the view of their private property from the

public    road.        Id.    at    379-81.          It     is   not   reasonable       for    a

property owner to rely on the fact that it is located near a

public road in a certain condition at a particular moment in

time.    See Surety Sav. & Loan Ass'n, 54 Wis. 2d at 444.

      ¶40     Numerous       jurisdictions           also    have    concluded       that    the
right    to   visibility          from   a     public     road    is   not    a     recognized
                                                16
                                                     No.   2016AP537



property right.9   Indeed, Adams fails to cite any jurisdiction

recognizing a right to visibility of private property from a

public road in the absence of a physical taking.10



     9
       See, e.g., Reid v. Jefferson Cty., 672 So. 2d 1285, 1289-
90 (Ala. 1995); Regency Outdoor Advert., Inc. v. City of Los
Angeles, 139 P.3d 119, 121 (Cal. 2006); Troiano v. Colorado
Dep't of Highways, 463 P.2d 448, 455 (Colo. 1969); Moreton
Rolleston, Jr. Living Tr. v. Dep't of Transp., 531 S.E.2d 719,
722 (Ga. Ct. App. 2000); State, Idaho Transp. Bd. v. HI Boise,
LLC, 282 P.3d 595, 602-04 (Idaho 2012); Stagni v. State ex rel.
Dep't of Transp. & Dev., 812 So. 2d 867, 871 (La. Ct. App.
2002); Kansas City v. Berkshire Lumber Co., 393 S.W.2d 470, 474
(Mo. 1965); Probasco v. City of Reno, 459 P.2d 772, 774 (Nev.
1969); State ex rel. State Highway Comm'n v. Lavasek, 385
P.2d 361, 364 (N.M. 1963); Acme Theatres, Inc. v. State, 258
N.E.2d 912, 914-15 (N.Y. 1970); Adams Outdoor Advert. of
Charlotte v. Dep't of Transp., 434 S.E.2d 666, 669 (N.C. Ct.
App. 1993); Filler v. City of Minot, 281 N.W.2d 237, 244 (N.D.
1979); In re Condemnation by the Delaware River Port Auth., 667
A.2d 766, 769 (Pa. Commw. Ct. 1995); Outdoor Advert. Ass'n. of
Tenn. v. Shaw, 598 S.W.2d 783, 788-90 (Tenn. Ct. App. 1979);
State v. Schmidt, 867 S.W.2d 769, 774 (Tex. 1993); see also
Malone v. Commonwealth, 389 N.E.2d 975, 979 (Mass. 1979).

     Some jurisdictions take a more nuanced approach, providing
that when there is a physical taking of private property, loss
of visibility may be considered as an element of severance
damages.   See, e.g., 8,960 Sq. Feet, More or Less v. State,
Dep't of Transp. & Pub. Facilities, 806 P.2d 843, 848 (Alaska
1991); State by Humphrey v. Strom, 493 N.W.2d 554, 561-62 (Minn.
1992); State by Comm'r of Transp. v. Weiswasser, 693 A.2d 864,
874-76 (N.J. 1997); Utah Dep't of Transp. v. Admiral Beverage
Corp., 275 P.3d 208, ¶19 (Utah 2011).   However, as the Supreme
Court of New Jersey explained, "[t]he critical factor [] in
determining if loss of visibility is a compensable element of
damages in a partial-taking condemnation[] is whether the loss
arises   from  changes   occurring  on   the   property  taken."
Weiswasser, 693 A.2d at 876 (emphasis added).       Here, it is
undisputed that there was no physical taking or change made to
Adams' property.


                               17
                                                                        No.       2016AP537



       ¶41    For example, the California Supreme Court rejected a

takings claim by a billboard owner who asserted that palm trees

that did not physically occupy any land owned by the billboard

company reduced the visibility of its billboards, constituting a

taking.      Regency Outdoor Advert., Inc. v. City of Los Angeles,

139    P.3d 119,      121    (2006).       The       California       Supreme       Court

disagreed,     concluding     that     "owners       and    occupiers       of   roadside

property do not possess a 'right to be seen' that requires the

payment of compensation for municipal landscaping efforts having

no    injurious     effect   on   any    property          rights    other       than   the

claimed right to visibility."            Id.

       ¶42    As here, the Regency court was assessing a takings

claim in the context of a preexisting use of a billboard, where

the sole harm alleged was that of loss of visibility from a

public      road.     Id.    at   122.         The    California       Supreme      Court

explained that courts generally rely on three justifications for

the "virtually unanimous" rule that there is no right to be seen

from a public road.          Id. at 125-27.           Those justifications are:
(1) road improvements that may limit visibility are foreseeable;

(2) the government has the authority to maintain and improve the

road system; and (3) the abridgment of the right to reasonable

ingress      and    egress   is   an     abutter's         only     right    warranting


       10
       The dissent, too, appears to concede that the right to
visibility from a public road is not a recognized property
right.   See dissent, ¶55 (listing four property interests at
stake in this case, none of which includes a right of
visibility).


                                         18
                                                                     No.    2016AP537



compensation when the government acts to improve a road.                     Id. at

127.

       ¶43    Adams   attempts    to   distinguish         Regency   by    asserting

that the billboards in Regency were not "nonconforming."                        Yet,

Adams cites no authority for its proposition that owners of

legal       nonconforming    property        should    be     provided      broader

protection than legally conforming property owners.                   As a policy

matter, such an argument is unpersuasive.

       ¶44    Likewise, we do not find persuasive Adams' argument

that    the   particular    use   of   its    land    as    containing     solely   a

billboard gives rise to a right of visibility justifying special

consideration      under    our   taking     law.11        Various   courts     have




       11
       Before the circuit court, counsel for Adams argued: "[A]
property owner doesn't have an absolute right to unrestricted or
unimpaired view of their property from some public space.    But
that assumes that the nature of the use or the use of your
property isn't solely to be viewed.   And that's what we've got
here."


                                        19
                                                                          No.     2016AP537



expressly rejected providing special consideration to billboard

owners in this context.12

      ¶45        Further, we observe that Adams' complaint is not that

the   City        has   invaded     or    unfairly      restricted    its       property.

Rather,         Adams   takes     issue   with     a   consequence   of     the    City's

modification of public property.                   See Randall, 212 Wis. at 383;

see also State ex rel. State Highway Comm'n v. Lavasek, 385

P.2d 361, 364 (N.M. 1963) (explaining that "[a]n easement of the

right      of    view   in   an    abutting      property   owner    would      create   a

burden on the servient tenement, the highway.").                       We decline to

impose a burden on the City's ability to improve public roads

here.



      12
       See, e.g., Moreton Rolleston, Jr. Living Tr. v. Dep't of
Transp., 531 S.E.2d 719, 722 (Ga. Ct. App. 2000) (concluding
that impaired visibility of a nonconforming billboard from a
highway due to the construction of a bridge does not constitute
a taking and the "fact that [an owner] uses its property in a
particular commercial manner does not change this result");
Outdoor Advert. Ass'n of Tenn. v. Shaw, 598 S.W.2d 783, 790
(Tenn. Ct. App. 1979) (rejecting the contention that "the
licensing of a billboard confers some special right of
visibility or imposes some special duty upon the State to
maintain   visibility  of   the  licensed   billboard");  In  re
Condemnation by the Delaware River Port Auth., 667 A.2d 766, 768
(Pa. Commw. Ct. 1995) (explaining that "what the [billboard]
owner is losing, in fact, is the benefit——entirely unearned by
him——to his land of the commercially exploitable proximity of
heavy traffic.   Since he has no right to this benefit and has
done nothing to create it, he should have little cause to
complain at losing it.") (citation omitted); see also Regency
Outdoor Advert., Inc. v. City of Los Angeles, 139 P.3d 119, 128-
29 (Cal. 2006); Adams Outdoor Advert. of Charlotte v. Dep't of
Transp., 434 S.E.2d 666, 668 (N.C. Ct. App. 1993).


                                              20
                                                                     No.   2016AP537



    ¶46     In sum,      we conclude that a right          to   visibility of

private property from a public road is not a cognizable right

giving   rise   to   a    protected   property     interest.          Because    we

determine    that    Adams   failed    to    establish     that       a    property

interest exists here, we need not address whether a property

interest was taken.       See Wis. Med. Soc'y, 328 Wis. 2d 469, ¶38.

    By    the   Court.—The    decision      of   the   court    of     appeals   is

affirmed.




                                      21
                                                                      No.    2016AP537.rgb


      ¶47    REBECCA GRASSL BRADLEY, J.                  (dissenting).         "Property

rights are necessary to preserve freedom, for property ownership

empowers persons to shape and to plan their own destiny in a

world where governments are always eager to do so for them."

Murr v. Wisconsin, 137 S. Ct. 1933, 1943 (2017).                            The majority

allows the constructive taking of Adams Outdoor's real property

by misapprehending the property interest at issue to be a "right

to   visibility"      rather     than       the    permit     for   the      west-facing

billboard.      See, e.g., Adams Outdoor Advert., Ltd. v. City of

Madison,    2006   WI    104,    ¶59,       294    Wis. 2d 441,      717     N.W.2d 803;

Clear Channel Outdoor, Inc. v. City of Milwaukee, 2017 WI App

15, ¶¶10, 24, 374 Wis. 2d 348, 893 N.W.2d 24, review denied,

2017 WI 81, 376 Wis. 2d 641, 899 N.W.2d 704.                        Because the City

of Madison deprived Adams Outdoor of all economically beneficial

use of its permit by constructing a bridge that obliterated the

permit's value, the court of appeals erred in affirming the

circuit     court's     grant    of     summary      judgment       dismissing     Adams

Outdoor's inverse condemnation claim.                    I would reverse the court
of   appeals'   decision        and   remand       for    a   determination      of   the

proper    compensation     owed       for    the    constructive      taking     of   the

west-facing billboard permit.               I respectfully dissent.

                                             I

      ¶48    Adams Outdoor owns an irregular-shaped piece of land

comprising less than half an acre in size along the Beltline

Highway in Madison.         The land's only "occupant" is a structure

containing two billboards, also owned by Adams Outdoor.                               One
billboard faces eastbound traffic and the other billboard faces

                                             1
                                                                           No.   2016AP537.rgb


westbound traffic.          The City of Madison treats each billboard as

separate property by requiring an individual permit for each

side.        Madison, Wis., Gen. Ordinance § 31.041(3) (2015).                          Adams

Outdoor paid separate fees to secure the required permit for

each billboard, it must pay advertising copy change fees per

side when the content displayed on the billboard changes, and it

is    taxed      separately     for     the    west-facing       and       the   east-facing

billboard permit.          Adams Outdoor owns the permits.1

       ¶49       Many   years    ago,       the     City    of   Madison         enacted   an

ordinance banning any new off-premise advertising signs.                                   See

Madison,       Wis.,    Gen.    Ordinance         § 31.11.       As    a    result    of   the

ordinance, no new permits may be issued for any billboards not

already in existence.            The billboards with permits predating the

ban are classified as legal, nonconforming signs.                            Id., § 31.05.

As property that is finite and restricted as legal-nonconforming

use     by     Madison's       zoning       ordinances,       permits        for     existing

billboards carry significant value.                     See Adams Outdoor Advert.,

Ltd.,      294    Wis. 2d 441,        ¶85     ("Value      primarily       inheres    in   the
permit because the City has severely restricted the number of

permits, artificially driving up their value.").

       ¶50       The land upon which Adams Outdoor's billboard sits was

valued at $1.46 million before the construction of the bridge.

After the bridge was erected, the value of the land dropped to

       1
       Because a billboard permit is real property, the permit
holder is referred to as the permit owner.     See, e.g., Clear
Channel Outdoor, Inc. v. City of Milwaukee, 2017 WI App 15, ¶13,
374 Wis. 2d 348, 893 N.W.2d 24, review denied, 2017 WI 81, 376
Wis. 2d 641, 899 N.W.2d 704.


                                                2
                                                                     No.       2016AP537.rgb


$720,000.      For purposes of this appeal, it is undisputed that

the bridge completely obscures the west-facing billboard.

     ¶51    The   majority       identifies         "the      essence"          of    Adams

Outdoor's     property    interest      to     be    "based    upon        a     right    of

visibility of private property from a public road," denies a

property      owner     any    "property        interest      in     the         continued

visibility of its property," and declines to address whether a

taking occurred.         Majority op. ¶¶29-30, 37, 46 ("In sum, we

conclude that a right to visibility of private property from a

public road is not a cognizable right giving rise to a protected

property interest.").           As a result, Adams Outdoor loses the

freedom to use its property as it wishes and instead must submit

to the government's preferences.

                                         II

     ¶52    Whether      the     City's        construction          of        a     bridge

constructively took Adams Outdoor's property is a question of

law reviewed independently.             See Howell Plaza, Inc. v. State

Highway Comm'n, 92 Wis. 2d 74, 80, 284 N.W.2d 887 (1979).                                Both
the Wisconsin Constitution and the United States Constitution

prohibit the City from taking Adams Outdoor's property without

just compensation.        Wis. Const. art. I, § 13 ("The property of

no   person     shall     be    taken     for       public     use    without          just

compensation therefor."); U.S. Const. amend. V. ("[N]or shall

private     property     be    taken     for     public       use,    without          just

compensation.").         In    order    to    establish       an   unconstitutional

taking, Adams Outdoor needs to show:                  "(1) a property interest
exists; (2) the property interest has been taken; (3) the taking

                                          3
                                                                               No.    2016AP537.rgb


was   for    public       use;       and    (4)        the     taking    was     without      just

compensation."           Wis. Med. Soc'y, Inc. v. Morgan, 2010 WI 94,

¶38, 328 Wis. 2d 469, 787 N.W.2d 22.                           "[I]t is 'imperative that

the Court maintain absolute fidelity to' the [Takings] Clause's

express      limit       on    the      power          of    the   government          over    the

individual,       no    less     than       with       every    other     liberty       expressly

enumerated in the Fifth Amendment or the Bill of Rights more

generally."            Kelo v. City of New London, 545 U.S. 469, 507

(2005)      (Thomas,      J.,    dissenting)                (quoting    Shepard        v.    United

States, 544 U.S. 13, 28 (2005) (Thomas, J., concurring in part

and concurring in judgment)).

      ¶53     A property owner proves a taking when a government

regulation        or    action       denies        him       all   or    substantially         all

practical uses of his property.                        Zealy v. City of Waukesha, 201

Wis. 2d 365, 374, 548 N.W.2d 528 (1996).                                Stated otherwise, a

taking occurs when the government denies a property owner all

"economically viable use of his [property]."                             Id. (quoting Lucas

v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992)).
      ¶54     In order to determine whether the government deprived

an owner of all or substantially all economically viable use of

property,     a    court      first        must    define       the     property       interest——

commonly deemed the "denominator" because the court must compare

the value taken from the property with the value that remains

and the property's value therefore "furnish[es] the denominator

of the fraction."             Id. at 375 (quoting Keystone Bituminous Coal

Ass'n v. DeBenedictis, 480 U.S. 470, 497 (1987)).                                    Defining the
denominator       drives       the    analysis.              The   United      States       Supreme

                                                   4
                                                                     No.   2016AP537.rgb


Court offers guidance in properly identifying the denominator——

the property interest:

      [N]o single consideration can supply the exclusive
      test for determining the denominator. Instead, courts
      must consider a number of factors. These include the
      treatment of the [property] under state and local law;
      the physical characteristics of the [property]; and
      the prospective value of the regulated [property].
      The endeavor should determine whether reasonable
      expectations about property ownership would lead a
      [property ]owner to anticipate that his holdings would
      be treated as one parcel, or, instead, as separate
      [property]. The inquiry is objective[.]
Murr, 137 S. Ct. at 1945.

                                            A

      ¶55    Ascertaining the denominator——identifying the property

interest——presents the threshold issue for the court to resolve.

"[T]he answer to this question may be outcome determinative."

Id.   at    1944.     This     case      involves   several     distinct      property

interests:      (1) the half-acre of land; (2) the permit for the

west-facing        billboard;      (3)    the   permit    for    the       east-facing

billboard;     and    (4)    the    billboard       structure    itself.2         Adams

Outdoor owns all four pieces of property.

      ¶56    The    majority    avoids      selecting    any    of    these    as   the

denominator; instead, it defines the property interest as the

"right to visibility."             In so doing, the majority ignores the

essential     fact    that   the      west-facing     billboard       permit    itself


      2
       The billboard structure itself is not real property;
rather, it is personal property assessed separately from the
permit and the land.    Adams Outdoor Advert., Ltd. v. City of
Madison, 2006 WI 104, ¶¶31, 33, 294 Wis. 2d 441, 717 N.W.2d 803;
Clear Channel Outdoor, Inc., 374 Wis. 2d 348, ¶¶6-10.


                                            5
                                                                                   No.    2016AP537.rgb


constitutes individual real property and the correct denominator

in the takings analysis.                     Consequently, the majority reaches a

legally erroneous outcome.

       ¶57        In Murr, the United States Supreme Court identified

state law treatment of the property as a factor for determining

the denominator.               137 S. Ct. at 1945.                 In Adams Outdoor Advert.,

Ltd.,       294     Wis. 2d 441,           ¶59,    this           court    recognized           that    a

billboard          permit       itself      is    individual             real    property:             "We

conclude          that    a     billboard        permit       is     a     right     or     privilege

appertaining             to    real       property      and        thus     falls        within        the

definition of 'real property' in Wis. Stat. § 70.03."3                                       "Because

a billboard permit confers a right or privilege to erect and

operate a billboard on a designated piece of land and because a

permit       cannot       be     transferred           to     a     different        location,         we

conclude a billboard permit falls within the definition of real

property."          Id., ¶64.

       ¶58        Our    court       of    appeals     recently           reiterated        the    same

legal principle——"billboard permits are real property" and "the
permit       is    the        entire      property     itself."             See     Clear       Channel

Outdoor,          Inc.,        374     Wis. 2d 348,           ¶¶10,        24.           This     legal

classification of billboard permits as real property distinct

from       both    the    billboard         itself      and       the     land    upon     which       the

structure sits points powerfully to the west-facing billboard

permit as the proper denominator.

       3
       Wisconsin Stat. § 70.03 defines real property as "not only
the land itself but . . . all fixtures and rights and privileges
appertaining thereto[.]"


                                                   6
                                                                                 No.   2016AP537.rgb


          ¶59   Under Murr, courts must "give substantial weight to

the treatment of the [property], in particular how it is bounded

or divided, under state and local law."                                137 S. Ct. at 1945.

Wisconsin       law     plainly          designates      billboard          permits       as    real

property, separate and distinct from the land with which they

are       associated.              See     Clear       Channel         Outdoor,        Inc.,     374

Wis. 2d 348, ¶24 (agreeing with the circuit court's conclusion

"the permit is the entire property itself.").                                   The west-facing

billboard        permit      is         separate       and     distinct         from    both    the

billboard structure and the land the structure inhabits.                                         The

City's      treatment        of     the     permit       as     separate         property      lends

further support for designating the west-facing billboard permit

as the denominator.                The City:           (1) requires a separate permit

for    each     side    of     a    billboard,         rather       than    issuing      a   single

permit      that     covers        the    billboard      structure          as    a    whole;    (2)

charges fees for each permit (rather than each billboard); and

(3) assesses distinct property taxes on each permit.                                     According

these       considerations              substantial          weight,       as    Murr     directs,
militates       in     favor       of    designating          the    west-facing         billboard

permit the appropriate denominator.

          ¶60   The second Murr factor directs courts to examine the

physical characteristics of the property.                              137 S. Ct. at 1945.

In    Murr, the Supreme Court determined that two separate but

contiguous parcels of land together constituted the denominator

in the takings analysis.                   Id. at 1948-50.              In this case, there

is    a    single     parcel       of    land,     a   billboard        structure,        and   two
billboard permits.             Obviously, the physical characteristics of a

                                                   7
                                                                               No.    2016AP537.rgb


billboard       permit——unlike           the        land       at     issue     in      Murr——are

irrelevant to a takings analysis.                        Such a permit is intangible;

nevertheless, it is valuable and it is what gave the small,

irregular-shaped parcel of land adjoining the Beltline Highway

its $1.46 million value before the City erected the bridge.

After    the    City       built   the     bridge,          the       land    parcel's      value

plummeted fifty percent.                The west-facing permit lost its entire

worth, while the unaffected east-facing permit retained its full

value.

       ¶61     Each permit's value depends entirely on prospective

advertisers' willingness to rent the permitted billboard.                                       In

this    regard,      the     physical      characteristics               of     the     billboard

structure become relevant.                    City ordinance prohibits altering

the structure in any manner that                         would restore the permit's

value.       However, in order to ameliorate the obstruction caused

by     the   City's        construction         of       the    bridge,        the      billboard

structure      would       need    to    move       or     be       heightened.          This   is

impossible because a City ordinance bans relocating, enlarging,
repositioning,        or    raising      in    height          any    legal     non-conforming

sign.     See Madison, Wis., Gen. Ordinance § 31.05; see also Adams

Outdoor Advert. Ltd. P'ship v. City of Madison, No. 2016AP537,

unpublished slip op., ¶2 (Wis. Ct. App. July 20, 2017) (per

curiam) ("Adams' billboard is a legal non-conforming use, which

means that Adams cannot change its height or location.").                                     As a

result,      Adams    Outdoor       is    left       with       a     small,     half-acre      of

irregularly-shaped land adjoining the Beltline Highway, on which
sits one rentable sign, the value of which is half what it was

                                                8
                                                                            No.    2016AP537.rgb


when     the    land    enjoyed       two    rentable           signs.        The       physical

characteristics of this parcel suggest its only valuable use is

to     anchor    signage;         otherwise,        its    value      would       not     be    so

precisely tied to the two signs posted there.

       ¶62     The City argues that Zealy, 201 Wis. 2d at 365, and

Randall v. City of Milwaukee, 212 Wis. 374, 249 N.W. 73 (1933),

govern the outcome in this case.                         But the properties in both

Zealy and Randall were solely physical land parcels and neither

case dealt with the complexities of a combination of land with

other real property like the billboard permits we consider in

this case.        The status of the billboard permit as separate,

standalone real property distinguishes this case from both Zealy

and Randall.           In Zealy, the property owner was farming 10.4

acres of a single piece of contiguous, undeveloped land but

anticipating residential use in the future.                           201 Wis. 2d at 369-

70.     The City rezoned 8.2 acres from residential to conservancy

use.     Id. at 370-71.             This zoning change did not impair the

property owner's ability to continue the existing farming use,
but it did preclude the property owner from developing 8.2 of

the 10.4 acres into residential property.                          Id.      The Zealy court

held    this    was    not    a     taking      because         (1)   the     land      was    one

contiguous property——"part of a single purchase"——that should

not be divided into segments; and (2) looking at the property as

a     whole,    the    rezoning       did    not         deprive      Zealy       of    "all   or

substantially         all    of    the    use       of    his    land"——Zealy           retained

beneficial and substantial uses for his property, including "its
historical use, farming."                Id. at 378-80.

                                                9
                                                                   No.    2016AP537.rgb


       ¶63   In contrast, the affected property of Adams Outdoor is

not    a   single,   contiguous    plot    of     land   acquired        in   a   single

purchase and Adams Outdoor does not wish to change the nature of

its use of the property in the future.                   Rather, Adams Outdoor

owns several distinct units of property it desires to use in

exactly the same manner it had always used the property, until

the City materially interfered.             Although the west-facing permit

is connected in a sense to the other property, it is nonetheless

treated as a distinct unit of individual real property under the

law.       Unlike    Zealy,   in   which    the    property    owner's         use   was

unchanged by the rezoning, the bridge altogether extinguished

Adams Outdoor's use of the west-facing billboard permit, thereby

denying Adams Outdoor all economically viable use of not merely

a segment of its property but the whole thing; no beneficial use

of the west-facing permit remains.

       ¶64   Like Zealy, Randall also involved an undeveloped piece

of contiguous land.           The City of Milwaukee placed a pedestrian

shelter on the sidewalk in front of part of the property owners'
land, which abutted the street.             Randall, 212 Wis. at 376.                The

Randall court decided the shelter did not cause a taking of the

owners' property because the shelter only "somewhat obstruct[ed]

or interfere[d] with ingress and egress, and the view to and

from their land" to the street.             Id. at 382.       The Randall court

suggested     this    "impairment"     could       result     in    the       landowner

collecting consequential damages from the City under Wis. Stat.

§ 80.47, but concluded the act was not a taking.                    Id. at 383-84.
Like Zealy, Randall does not control this case because the City

                                       10
                                                                     No.   2016AP537.rgb


of Milwaukee merely impaired the property owners' use of the

single, contiguous parcel of land whereas in this case the City

of Madison extinguished all use of the separate and distinct

unit of real property owned by Adams Outdoor.4                    Neither Zealy nor

Randall compels us to artificially meld the half-acre of land,

the   billboard,       and      the    two   permits   into   a   single     piece      of

property.

      ¶65    The    third       Murr    factor    examines    "the    value      of    the

property      under       the    challenged       [governmental      action],         with

special attention to the effect of burdened land on the value of

other holdings."          137 S. Ct. at 1946.          The west-facing billboard

permit      possessed      significant        value     before    the      bridge     was

constructed.        Its substantial value rested in the right to erect

and maintain a billboard that the permit authorized.                             This is

evident from the appraised value of the plot of land upon which

the billboard sits.             When both the west-facing billboard permit

and the east-facing permit could be beneficially used, the land

enjoyed an appraised value of $1.46 million, but when only one
of the permits could be beneficially used, the land's appraised

value declined to $720,000.                  This drastic diminution in value

indicates     the     west-facing       billboard      permit's   value     after      the

erection     of     the    bridge       is   zero.      In    effect,      the    City's

construction of the bridge constructively revoked the permit by

      4
       Significantly, Randall does acknowledge that "an owner of
land abutting on a street has the right" of, among other things,
"view"; the right to view is "subject to such public street use
and purposes as the location of the street requires."     Randall
v. City of Milwaukee, 212 Wis. 374, 374, 249 N.W. 73 (1933).


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abolishing Adams Outdoor's ability to employ any economically

beneficial use of its west-facing billboard permit.                                The third

Murr     factor       also   supports       designating        the     permit          as   the

appropriate denominator.

       ¶66     Based on Wisconsin case law recognizing the billboard

permit    as    the    "entire"    real     property      in     and      of    itself,     the

permit for the west-facing sign is the appropriate denominator

for    assessing        whether      a     constructive        taking           occurred,     a

conclusion that is bolstered by the Murr factors.

                                             B

       ¶67     Having decided the proper denominator, the remaining

question       is   whether    the       City's    construction           of     the    bridge

constituted a compensable taking of Adams Outdoor's west-facing

billboard permit.            A compensable taking occurs if the City's

action       denied    Adams   Outdoor        of    all     or    substantially             all

"economically         beneficial     or    productive      use"      of    its     property.

See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992);

see also Dolan v. City of Tigard, 512 U.S. 374, 385 (1994); Zinn
v. State, 112 Wis. 2d 417, 424, 334 N.W.2d 67 (1983) (taking

occurs "when the government restriction placed on the property

'practically or substantially renders the property useless for

all reasonable purposes'" (quoted source omitted)).

       ¶68     The only economically beneficial or productive use of

the    west-facing       billboard        permit   is     renting      the       west-facing

billboard to advertisers.                There is no question that before the

bridge existed, this is exactly what Adams Outdoor did.                                     The
income from using the west-facing billboard permit was $8,000

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per month or $96,000 per year.                   Adams Outdoor asserts this use

of    the     west-facing          billboard       permit         no     longer    exists.

Advertisers will not want to rent the west-facing billboard,

rendering its corresponding permit useless.

      ¶69     The City argues that the property retains beneficial

use because Adams Outdoor can still profitably use its east-

facing sign, and the law, according to the City, will not divide

property     into     separate      segments.          The    City's        argument    fails

because the law recognizes each permit as a distinct, standalone

unit of real property.             The west-facing billboard permit is not

a "piece" of the pie.          It is the whole pie.

      ¶70     This    case    is     more   akin       to    Maxey     v.    Redevelopment

Authority, 94 Wis. 2d 375, 288 N.W.2d 794 (1980), than the cases

the   City    cites     involving      single,      contiguous           plots    of    land.

Maxey involved a redevelopment project that "placed a moratorium

on the issuance of theater licenses in the central business

section of [the city]" where Maxey operated a theater as a long-

term leaseholder in the Baker Block Building.                          Id. at 385.      As a
result,      Maxey    could    not    renew      his    theater        license,    thereby

"eliminat[ing]         the    economic        value          of    the       theater"     and

"substantially depriv[ing] [Maxey] of his economic interest in

the property."         Id. at 391.          The Maxey court held that "where

rental      income    was    Maxey's    only      significant          interest    in    the

property, all, or substantially all, of the beneficial use of

his property was taken from him."                 Id. at 392.          So too here.

      ¶71     Adams     Outdoor's       property            interest        resembles     the
property interest in Maxey, not the single, contiguous piece of

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real property in Randall and Zealy.                      Maxey involved property

with distinct and separate units:                  the lessor's interest as the

owner of the building, and Maxey's interest as the owner of both

a 99-year lease and an annually-renewable theatre license from

the City.          Id. at 384, 391, 400-01.             The Maxey court used the

theatre      license       as   the   denominator,      correctly     deciding       that

without      the    license      to    operate    the   theatre,     the     lease   was

worthless.         Id. at 391.        The building had been constructed to be

a theater, and that was its existing use.                          Id.      The City's

denial of the license constituted a taking because it deprived

Maxey of all economic use of the property.                  Id. at 391-92.

       ¶72    The same is true for Adams Outdoor.                  It owns the west-

facing    billboard        permit,     whose     sole   economic    benefit     derives

from   renting       the    west-facing     billboard      to   advertisers.          The

bridge deprives Adams Outdoor of economic use of the west-facing

billboard     permit,       defeating     Adams     Outdoor's      investment-backed

expectations developed over years of consistent, unhindered use.

The west-facing billboard permit is rendered useless as a result
of the City's constructive taking of the west-facing billboard

permit and the consequent deprivation of rental income.                              The

City's action is a compensable taking.                   Id. at 392 (citing Luber

v. Milwaukee Cty., 47 Wis. 2d 271, 278, 177 N.W.2d 380 (1970)).

                                            C

       ¶73    Takings law, properly applied, prevents unfair burdens

from being imposed on a single property owner for a government

project that will benefit the public as a whole.                           Murr, 137 S.
Ct. at 1943.

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      In adjudicating regulatory takings cases a proper
      balancing of these principles requires a careful
      inquiry informed by the specifics of the case. In all
      instances, the analysis must be driven "by the purpose
      of the Takings Clause, which is to prevent the
      government from 'forcing some people alone to bear
      public burdens which, in all fairness and justice
      should be borne by the public as a whole.'"
Id. (quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617-18

(2001)).      It is undisputed that the bridge over the Beltline

Highway     benefits      the    public    as     a    whole.       But,       this      public

benefit     forced      Adams    Outdoor        to     bear    a    heavy        burden——the
destruction       of    all   economically        viable      use   of    its      property.

Moreover, Adams Outdoor cannot take any steps to mitigate its

losses because its legal but non-conforming use status precludes

Adams    Outdoor       from   reconfiguring           or   moving   the     structure        in

order to restore the rentability of the west-facing billboard.

The     bridge    completely      deprived        Adams       Outdoor       of     the     only

economically viable use (and therefore the entire value) of its

west-facing billboard permit.                   As the owner of real property

whose     value    the    City     wholly        eliminated,        Adams        Outdoor    is

entitled to fair and just compensation.

                                          * * *

      ¶74    A lawful mechanism exists for invading the "sacred and

inviolable rights of private property" as Blackstone outlined

centuries ago:

      So great moreover is the regard of the law for private
      property, that it will not authorize the least
      violation of it; no, not even for the general good of
      the whole community . . . . In vain may it be urged,
      that the good of the individual ought to yield to that
      of the community; for it would be dangerous to allow
      any private man . . . to be the judge of this common
      good . . . .    In this . . . the legislature alone
                                            15
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    can . . . interpose, and compel the individual to
    acquiesce. But how does it interpose and compel? Not
    by absolutely stripping the subject of his property in
    an arbitrary manner; but by giving him a full
    indemnification and equivalent for the injury thereby
    sustained.    The public is now considered as an
    individual, treating with an individual for an
    exchange. All that the legislature does is to oblige
    the owner to alienate his possessions for a reasonable
    price.
1 William Blackstone, Commentaries on the Laws of England 78-80

(George Chase ed., 4th ed. 1938) (1765).          The City of Madison's

construction   of   the   bridge   effected   a   compensable    taking   of

Adams Outdoor's permit for the west-facing billboard because the

City eliminated the only economically viable use of that permit.5

While the City possessed the power to do this, it may not impose

the economic burden of the public bridge on one property owner.

I would reverse and remand for a determination as to the proper

compensation owed for this constructive taking.

    ¶75   The majority permits the unconstitutional taking of

private property without just compensation, thereby threatening




    5
       I acknowledge that the City maintains it conceded that the
bridge completely obscured the west-facing billboard only for
purposes of this appeal.    The City asserts that if this court
determines   a   taking  occurred,   the  "completely   obscured"
stipulation no longer applies and the circuit court would need
to find what percentage of the west-facing billboard has
actually been obscured.


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the   freedom   of   all   private   property   owners   in   Wisconsin.   I

respectfully dissent.6




      6
       The majority objects to addressing the permit as the
denominator because this argument was raised in the amicus
curiae brief, the permit is not in the record, the City's
attorney believes there is not a separate permit for each side
of the billboard, and forfeiture should apply.      See majority
op., ¶24 n.8.   Amicus curiae, or "friend of the court" briefs,
may be filed only with permission of this court. See Wis. Stat.
§ 809.19(7). An effective amicus brief "'bring[s] something new
and interesting to the case.'    This might be better research,
more cogent analysis or a more convincing demonstration of the
impact of the decision on the public at large."         Randy S.
Parlee, A Primer on Amicus Curiae Briefs, 62 Wis. Law. 15 (Nov.
1989) (quoted source omitted).   The amicus brief did just that
in this case. The amicus argument that the permit was the real
property at issue dominated the first half of the oral argument,
generating multiple questions and discussion on the topic——from
three justices.     The majority quotes an excerpt from oral
argument making it appear that Adams Outdoor's lawyer forfeited
the issue. But the excerpt does not give the whole story. The
majority omits the clarification Adams Outdoor's lawyer made
immediately after answering "Not, that's correct, Your Honor,
not specifically":

      Chief Justice:     So, you're not claiming that the
      income you earn by based on the permit, you're not
      claiming that's a concern for us, right?

      Adams Outdoor's lawyer:        That is a concern, your Honor——

      Chief Justice: Alright, that's different than your answer
      to Justice [A.W.] Bradley's question.

      Adams Outdoor's lawyer:        Maybe I misunderstood the
      question. Certainly, in terms of measuring the damages or
      impact or the value of that interest, whether you identify
      the value as flowing from the permit in the display of that
      sign or you just recognize that sign exists . . .    And it
      will generate a certain amount of revenue through the
      display of advertising. That number, tied to the permit or
      tied to the sign face will be the same issue.

                                                                (continued)
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    ¶76   I am authorized to state that Chief Justice PATIENCE

DRAKE ROGGENSACK and Justice DANIEL KELLY join this dissent.




     In fact, Adams Outdoor's lawyer told the court at oral
argument:   "The permit to display the billboard is certainly a
separate property interest that could be the subject of takings
analysis in this case.   I don't disagree with the amicus brief
in that respect."    And, he represented:    "In fact, the city
treats both sign faces as separate economic units by virtue of
the fact that they have licensed both sign faces separately.
And that's a critical piece of our analysis here.       Certainly
that license could stand for its own separate property interest
that could be the subject of takings analysis." He asserted "I
think we do have a property interest in the permit . . . ."

     The City's attorney did not speak as definitively in
responding that he merely believes Adams Outdoor's lawyer is
wrong about the City issuing a separate permit for both the
east- and west-facing billboards.    Both the amicus lawyers and
the lawyer representing Adams Outdoor unequivocally represented
that the City issued two permits.        Indeed, applicable law
requires it.     Far from being an "unsubstantiated factual
allegation" as the majority characterizes it, majority op., ¶24
n.8, the existence of two permits is required by the City's own
ordinance, Madison, Wis., Gen. Ordinance § 31.041(3) (2015).

     As   for   forfeiture,   it   "is   a   rule   of   judicial
administration, and as such, a reviewing court has the inherent
authority to disregard a [forfeiture] and address the merits of
an unpreserved issue in exceptional cases."           Village of
Trempealeau v. Mikrut, 2004 WI 79, ¶17, 273 Wis. 2d 76, 681
N.W.2d 190.      "[C]ourts   have   authority   to   ignore   the
[forfeiture]."   State v. Erickson, 227 Wis. 2d 758, 766, 596
N.W.2d 749 (1999); see also Wis. Stat. § 751.06 (allowing
discretionary review of issue not raised in circuit court).
This court should not ignore a dispositive issue of law.


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