                                                                          2016 WI 5

                  SUPREME COURT               OF    WISCONSIN
CASE NO.:               2012AP2520
COMPLETE TITLE:         Hoffer Properties, LLC,
                                   Plaintiff-Appellant-Petitioner,
                             v.
                        State of Wisconsin, Department of
                        Transportation,
                                   Defendant-Respondent.

                           REVIEW OF A DECISION OF THE COURT OF APPEALS
                          (Reported at 354 Wis. 2d 621, 848 N.W.2d 903)
                                   (Ct. App. 2014 – Unpublished)

OPINION FILED:          February 4, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          September 8, 2015

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Jefferson
   JUDGE:               William F. Hue

JUSTICES:
   CONCURRED:           ABRAHAMSON, A.W. BRADLEY, J.J., concur. (Opinion
                        Filed)
  DISSENTED:            PROSSER, J., dissents. (Opinion Filed)
  NOT PARTICIPATING:    R.G. BRADLEY, J., did not participate.

ATTORNEYS:
       For the plaintiff-appellant-petitioner, there were briefs
by   Benjamin         Southwick,   Richland   Center     and   oral     argument   by
Benjamin Southwick.


       For      the    defendant-respondent,       the   cause    was    argued    by
Abigail C.S. Potts, Assistant Attorney General, with whom on the
brief was Brad D. Schimel, Attorney General.


       There was an         amicus curiae     brief      by   Erik Samuel Olsen,
Joseph J. Rolling, Andrew Weininger and Eminent Domain Services,
LLC, Madison, on behalf of Eminent Domain Services, LLC.
2
                                                                             2016 WI 5
                                                                   NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2012AP2520
(L.C. No.   2009CV499)

STATE OF WISCONSIN                             :              IN SUPREME COURT

Hoffer Properties, LLC,

            Plaintiff-Appellant-Petitioner,                             FILED
      v.                                                            FEB 4, 2016
State of Wisconsin, Department of                                     Diane M. Fremgen
Transportation,                                                    Clerk of Supreme Court


            Defendant-Respondent.




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



      ¶1    MICHAEL      J.   GABLEMAN,   J.   This      is    a     review      of    an

unpublished decision of the court of appeals affirming a grant

of partial summary judgment to the Department of Transportation
(DOT).1 Pursuant to Wis. Stat. § 84.25 (2007-08),2 DOT eliminated

Hoffer Properties, LLC's (Hoffer's) direct driveway connections

to State Trunk Highway 19 (STH 19), a controlled-access highway.

DOT also separately exercised its power of eminent domain to

      1
       Hoffer Props., LLC v. DOT, No. 2012AP2520,                        unpublished
slip op. (Wis. Ct. App. May 1, 2014).
      2
       All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
                                                               No.2012AP2520



acquire .72 acre of Hoffer's land in order to extend Frohling

Lane westward so as to connect Hoffer's property to the highway.

Hoffer received $90,000 in compensation for the .72 acre taken

to construct the Frohling Lane extension. Hoffer is challenging

the amount of compensation awarded.

    ¶2     Hoffer does not claim that the $90,000 was inadequate

compensation for the .72 acre itself. Hoffer concedes that DOT

properly   designated   STH    19    as    a   controlled-access    highway.3

Additionally, Hoffer agrees that the designation of a highway as

"controlled-access" is a valid exercise of the police power and

further agrees that such exercises are not compensable under the

eminent domain statutes.4 Hoffer argues, however, that because

there was a partial taking of some portion of its property under

eminent domain, the damages attributable to the loss of direct

access to STH 19 are compensable pursuant to the partial takings

subsection   of   the   just        compensation    statute,     Wis.    Stat.

    3
       When asked in the trial court whether there was any
dispute that STH 19 was a controlled-access highway, Hoffer
responded "No argument, your Honor. As [the attorney for DOT
said], the Department properly caused it to be or declared it to
be a controlled-access highway."
    4
        In its brief to this court, Hoffer states:

    In accordance with Wis. Stat. § 32.09(6)(b), DOT can
    deprive or restrict an abutting owner's right of
    access to a highway 'without compensation under any
    duly authorized exercise of the police power.' The
    only way that DOT can acquire an abutting owner's
    access rights under the police power and without the
    payment of compensation is by declaring the highway in
    [sic] to be a controlled-access highway under § 84.25.


                                       2
                                                                             No.2012AP2520



§ 32.09(6)(b). Consequently, Hoffer contends, compensation for

the    .72    acre     must   include       the   diminution          of     value      of   the

property due to the loss of its direct access to the highway.

       ¶3      Hoffer      appealed    the    amount       of    compensation           to   the

Jefferson       County      circuit     court,       Honorable         William       F.      Hue,

presiding. At the circuit court, Hoffer argued that DOT owed him

additional      compensation         for    diminution          of   the     value      of   the

property due to the loss of direct access to STH 19 if a jury

determined the access provided by the Frohling Lane extension is

unreasonable. DOT argued that because it exercised its police

power to eliminate Hoffer's direct access to STH 19 and because

Hoffer has alternate access to the property through the Frohling

Lane extension, Hoffer has reasonable access as a matter of law

and no compensation is due. The circuit court agreed and granted

partial summary judgment to DOT.

       ¶4      The court of appeals affirmed, concluding that under

our    holding        in   Surety     Savings     &       Loan       Ass'n    v.     DOT,     54

Wis. 2d 438, 195 N.W.2d 464 (1972), when DOT acts pursuant to
the   controlled-access           highway     statute      "the       inquiry      is     merely

whether alternate access was provided." Hoffer Props., LLC v.

DOT, No. 2012AP2520, unpublished slip op., ¶7 (Wis. Ct. App. May

1,    2014)    (citing      Surety     Savings,      54    Wis. 2d at         444-45).       The

court of appeals determined that the circuit court's grant of

summary       judgment      was   proper     because       DOT       provided      alternate

access to Hoffer's property. Id.

       ¶5      We consider two issues. First, whether DOT is duly
authorized       by    Wis.    Stat.       § 84.25    to    eliminate         an     abutting
                                              3
                                                                  No.2012AP2520



owner's direct access to a controlled-access highway and replace

it with more circuitous access.5 Second, whether the provision or

existence of some access to the abutting property obviates the

need for a jury determination of "reasonableness" because the

abutting property owner is precluded from compensation pursuant

to Wis. Stat. § 32.09(6)(b).

      ¶6        First, we hold that Wis. Stat. § 84.25(3) authorizes

DOT to change Hoffer's access to STH 19 in whatever way it deems

"necessary or desirable." Such changes, including elimination of

direct     access    points,    are   duly    authorized     exercises    of    the

police power and are not compensable under Wis. Stat. § 32.09 as

long as alternate access is given that does not deprive the

abutting owner of all or substantially all beneficial use of the

property. Second, we hold that when DOT changes an abutting

property owner's access to a controlled-access highway but other

access     is    given   or   exists,   the    abutting     property    owner     is

precluded from compensation pursuant to Wis. Stat. § 32.09(6)(b)

as a matter of law and no jury determination of reasonableness
is   required.      Reasonableness      is    the   wrong   standard    to   apply

because     the    provision    of    some   access   preserves    an    abutting

property owner's right of access to a controlled-access highway,

and thus no taking compensable under Wis. Stat. § 32.09(6)(b)

occurs. Accordingly, Hoffer is precluded from compensation under


      5
       Neither the circuit court nor the court of appeals
addressed this issue because Hoffer did not raise it before
either court.


                                         4
                                                                            No.2012AP2520



Wis.       Stat.        § 32.09(6)(b)        because     alternate        access    to   the

property          was    provided      by     the    Frohling     Lane      extension.      We

therefore affirm the court of appeals.

              I.        FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       ¶7     Hoffer Properties, LLC, owns the subject property, a

9.90       acre     parcel     of    land      located     west      of   Watertown.     The

property's northern boundary is State Trunk Highway 19. Prior to

2008,       the     property     had        direct   access     to    STH    19    via   two

driveways. The property consists of a single-family dwelling,

the first floor of which is Hoffer's real estate office; a barn

that is rented for storage; and a machine shed that is partially

rented as a workshop. On June 14, 2002, DOT designated 13.76

miles of STH 19 a "controlled-access" highway pursuant to Wis.

Stat.      § 84.25.6       The      portion    of    STH   19     that    was     designated

       6
       Wis. Stat. § 84.25, the controlled-access highway statute,
consists of several subsections that outline the powers of DOT
to regulate traffic on the highway and the rights of users,
abutting   landowners,  and   the  general   public  after   that
declaration is made. The procedures DOT must follow to make a
valid declaration of controlled-access are stated in section
84.25(1):

       The legislature declares that the effective control of
       traffic entering upon or leaving intensively traveled
       highways is necessary in the interest of public
       safety, convenience and the general welfare. The
       department is authorized to designate as controlled-
       access highways the rural portions of the state trunk
       system on which, after traffic engineering surveys,
       investigations and studies, it shall find, determine
       and declare that the average traffic potential is in
       excess of 2,000 vehicles per 24-hour day. Such
       designation of a portion of any state trunk highway in
       any county as a controlled-access highway shall not be
       effected until after a public hearing in the matter
                                                       (continued)
                                                5
                                                           No.2012AP2520



"controlled-access" included the portion that bounded Hoffer's

property.

      ¶8    In 2008, DOT undertook a highway improvement project

that involved relocating STH 26, which was to intersect with STH

19 to the west of Hoffer's property. DOT determined that it was

necessary to change the access points to STH 19 in the vicinity

of the relocated STH 26 as part of the project.        To that end, on

December 29, 2008,7 DOT eliminated Hoffer's direct access to STH

19.   DOT   acquired   through   eminent   domain   both   .72   acre      of

Hoffer's land as well as a temporary limited easement in order

to create alternate access to Hoffer's property. DOT tendered to



      has been held in the county courthouse or other
      convenient public place within the county following
      notice by publication of a class 3 notice, under ch.
      985, in a newspaper published in the county. If the
      department shall then find that the average traffic
      potential is as provided by this subsection, and that
      the designation of the highway as a controlled-access
      highway is necessary in the interest of public safety,
      convenience and the general welfare, it shall make its
      finding, determination and declaration to that effect,
      specifying the character of the controls to be
      exercised. Copies of the finding, determination and
      declaration shall be recorded with the register of
      deeds, and filed with the county clerk, and published
      as a class 1 notice, under ch. 985, in the newspaper
      in which the notice of hearing was published, and the
      order shall be effective on such publication. Not more
      than 1,500 miles of highway shall be designated as
      controlled-access highways under authority of this
      section.
      7
       Hoffer's brief to this court states that the date of this
taking was December 28, 2009; the Deed by Corporation indicates
the date as December 29, 2008.


                                    6
                                                                  No.2012AP2520



Hoffer $90,000 for this taking. Hoffer's existing direct access

to STH 19 was replaced by extending Frohling Lane (a north-south

roadway   that     intersects   with     STH    19)    westward      to    Hoffer's

property.    DOT    constructed    a     new    driveway     north    from     this

extension   to     restore   vehicular     access     to   Hoffer's       property.8

Hoffer's replacement access requires vehicles to travel roughly

1,000 feet to reach STH 19.

    ¶9      On   May   29,    2009,    Hoffer    appealed      the    amount      of

compensation it received to the Jefferson County circuit court

pursuant to the eminent domain statutes, Wis. Stat. ch. 32.9

Hoffer claimed that because there had been a partial taking of

its land, Wis. Stat. § 32.09(6)(b)10 required DOT to include in

    8
       Payment for the driveway is not at issue because Hoffer
conceded at oral argument that DOT had constructed and paid for
the new driveway.
    9
       Pursuant to Wis. Stat. § 32.05(2)-(7), DOT must have an
appraisal of the property taken prior to condemnation. DOT must
then negotiate with the property owner for purchase of the
property. If no agreement can be reached, DOT makes a
jurisdictional offer to purchase which describes the nature of
the project, the property to be taken, the proposed date of
occupancy, the amount of compensation offered, the right of the
property owner to accept or reject the offer, and an explanation
of how to appeal the amount of compensation offered. Wis. Stat.
§ 32.05(3). If the property owner rejects the offer, the amount
of compensation offered can be appealed to a judge of the
circuit court for the county in which the property is located.
See Wis. Stat. § 32.05(9)(a).
    10
       Wis. Stat. § 32.09 governs just compensation in eminent
domain proceedings.    Subsection (6) governs partial takings.
Subsection (6)(b) allows for compensation for diminution of
value to the rest of the property caused by "deprivation or
restriction of [an] existing right of access to [a] highway from
abutting land, provided that nothing herein shall operate to
                                                     (continued)
                                       7
                                                                            No.2012AP2520



the amount of compensation paid for the taking the amount by

which the value of the property was diminished due to the loss

of   its    direct    access      to     STH       19.    Hoffer     conceded         that   DOT

properly      designated         STH     19     a        "controlled-access"           highway

pursuant to Wis. Stat. § 84.25.11 Hoffer contended, however, that

Wisconsin law requires DOT to pay compensation if DOT does not

provide     reasonable         access    between          the    highway        and   Hoffer's

property. Citing our decision in National Auto Truckstops, Inc.,

v. DOT, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198,                                    Hoffer

filed a motion in limine seeking an order that reasonable access

was a jury question and that Hoffer was due compensation if a

jury decided that the Frohling Lane access was unreasonable.

      ¶10    DOT moved for partial summary judgment, arguing that

pursuant     to    our     holding       in        Surety       Savings     "there      is    no

compensable       taking   when        direct      access       to   a   controlled-access

highway is denied, where other access is given or otherwise

exists."     Surety      Savings,       54    Wis. 2d at         443.     DOT    stated      that

because there was no dispute that it had acted pursuant to Wis.
Stat.      § 84.25,      the    controlled-access               highway         statute,     and

because the Frohling Lane extension had provided "other access"

to the property, Hoffer's access was reasonable as a matter of




restrict the power of the state . . . to deprive or restrict
such access without compensation under any duly authorized
exercise of the police power."
      11
           See n.3.


                                               8
                                                                    No.2012AP2520



law,   so    any   claim    for    damages     resulting     from   a    change     in

Hoffer's access was barred.

       ¶11   Following a hearing, the circuit court denied Hoffer's

motions and granted partial summary judgment to DOT. The circuit

court found that the elimination of Hoffer's direct access to

STH 19 was a noncompensable exercise of the police power and

that   reasonable    access       had   been   given    as   a   matter    of    law.

Thereafter, the circuit court granted Hoffer's motion to dismiss

the action but preserved Hoffer's right to appeal.

       ¶12   On appeal, Hoffer argued that our holding in National

Auto Truckstops required DOT to compensate the owner of abutting

land if 1) DOT eliminates the property's direct access to a

controlled-access highway; and 2) a jury determines that the

replacement access is unreasonable. In an unpublished per curiam

opinion, the court of appeals affirmed the circuit court. Hoffer

Props., LLC, No. 2012AP2520, unpublished slip op. The court of

appeals distinguished National Auto Truckstops by noting that

the highway at issue there was not a controlled-access highway.
Id., ¶6. The court of appeals determined that Surety Savings

controlled, and "reject[ed] Hoffer's argument that the question

of whether the alternate access was reasonable was required to

be decided by a jury, because reasonableness is not the correct

legal standard to apply. Under Surety Savings, the inquiry is

merely   whether    alternate      access      was   provided."     Id.,   ¶7.    The

court of appeals determined that because alternate access to

Hoffer's     property      was    provided,     no   compensable        taking    had
occurred. See id.
                                         9
                                                                              No.2012AP2520



      ¶13      Hoffer      petitioned      this       court       for    review,        which   we

granted on February 10, 2015.

                              II.     STANDARD OF REVIEW

      ¶14      This    case       requires      us    to    construe        the    controlled-

access      highway        statute,    Wis.      Stat.        § 84.25,       and        the   just

compensation statute, Wis. Stat. § 32.09.                               "The interpretation

of a statute is a question of law that we review de novo." Crown

Castle USA, Inc., v. Orion Constr. Grp., LLC, 2012 WI 29, ¶12,

339     Wis. 2d 252,          811     N.W.2d 332.            "We     interpret           statutes

independently, but benefit from both our prior analyses and that

of the lower courts." Id. (citation omitted).

                           III.     STATUTORY INTERPRETATION

      ¶15      Statutory interpretation "begins with the language of

the   statute.        If    the     meaning      of    the        statute     is    plain,      we

ordinarily stop the inquiry."                    State ex rel Kalal v. Circuit

Court    for    Dane       Cty.,    2004   WI    58,       ¶45,    271    Wis. 2d 633,          681

N.W.2d 110. "Statutory language is given its common, ordinary,

and accepted meaning, except that technical or specially-defined
words    or     phrases        are     given         their        technical        or     special

definitional meaning." Id. "We attempt to give reasonable effect

to    every     word,        avoiding        both      surplusage          and      absurd      or

unreasonable results." Crown Castle USA, 339 Wis. 2d 252, ¶13

(citing Kalal, 271 Wis. 2d 633, ¶46). Further, "the context and

structure of the statute are important, and we interpret the

statute in light of 'surrounding or closely-related statutes.'"

Masri v. LIRC, 2014 WI 81, ¶30, 356 Wis. 2d 405, 850 N.W.2d 298
(quoting Kalal, 271 Wis. 2d 633, ¶46).
                                                10
                                                                             No.2012AP2520



                                    IV.   DISCUSSION

      ¶16     We   first      discuss       whether          the     elimination      of        an

abutting property owner's direct access to a controlled-access

highway is an exercise of the police power duly authorized by

Wis. Stat. § 84.25. We hold that it is, because the statute

authorizes DOT to change access to such a highway as DOT deems

"necessary or desirable." We then consider whether the provision

of   some     alternate       access      to        an   abutting      property       owner's

property      obviates        the    need       for      a    jury     determination            of

"reasonableness"         in   controlled-access              highway    cases.     We      hold

that reasonableness is the wrong standard to apply because when

DOT changes an abutting property owner's access pursuant to Wis.

Stat.    § 84.25,        no     taking         compensable           under     Wis.     Stat.

§ 32.09(6)(b) occurs. Thus, in controlled-access highway cases

abutting property owners are precluded from compensation for a

change   in    access      pursuant       to    Wis.     Stat.       § 32.09(6)(b)         as    a

matter of law. However, exercises of the police power cannot

deprive the owner of all or substantially all beneficial use of
the property without compensation. If the replacement access is

so   circuitous     as     to   amount         to    a   regulatory      taking       of    the

property, then compensation is due and the abutting property

owner may bring an inverse condemnation claim pursuant to Wis.

Stat. § 32.10.




                                               11
                                                                           No.2012AP2520


              A. ELIMINATION OF AN ABUTTING PROPERTY OWNER'S
                DIRECT ACCESS TO A CONTROLLED-ACCESS HIGHWAY
             IS A DULY AUTHORIZED EXERCISE OF THE POLICE POWER
       ¶17     The     Fourteenth           Amendment      to     the     United    States

Constitution states that no person shall be deprived of property

without due process of law. U.S. Const. amend. XIV, § 1. The

Wisconsin       Constitution           provides     that    "[t]he      property    of     no

person shall be taken for public use without just compensation

therefor." Wis. Const. art. I, § 13. "It has long been settled,

however,       that    these       constitutional          provisions      interpose       no
barrier to the exercise of the police power of the state." State

ex    rel.    Carter       v.   Harper,      182    Wis.   148,    151,    196    N.W.   451

(1923). In other words, "injury to property resulting from the

exercise of the police power of the state does not necessitate

compensation." Surety Savings, 54 Wis. 2d at 443. A state acts

under its police power when it regulates in the interest of

public       safety,       convenience,       and    the   general      welfare    of    the

public. See Nick v. State Highway Comm'n, 13 Wis. 2d 511, 513-

14, 109 N.W.2d 71 (1961). Government action such as a regulation

can amount to a compensable taking absent a physical occupation,
however, "if [the effects of the governmental action] are so

complete as to deprive the owner of all or most of his interest

in the subject matter." Wisconsin Light & Power Co. v. Columbia

Cty.,    3    Wis. 2d 1,          5,   87    N.W.2d 279     (1958)      (quoting    United

States v. General Motors Corp., 323 U.S. 373, 378 (1945)); see

also Just v. Marinette Cty., 56 Wis. 2d 7, 15, 201 N.W.2d 761

(1972) ("The protection of public rights may be accomplished by
the    exercise       of    the    police     power     unless    the     damage   to    the

                                               12
                                                                  No.2012AP2520



property owner is too great and amounts to a confiscation.").

Claims for such "regulatory takings" must be brought under Wis.

Stat. § 32.10, the inverse condemnation statute.

      ¶18    The primary distinction between the power of eminent

domain and the police power of the state most relevant to the

present case is that government takings by eminent domain are

compensable under Wis. Stat. § 32.09, while government actions

pursuant     to     the   police     power     are    not,   except   in    limited

circumstances. See Wis. Stat. § 32.09(4), (6)(b). While we note

that "[t]he right of access to and from a public highway is one

of the incidents of the ownership or occupancy of land abutting

thereon," 118th Street Kenosha, LLC, v. DOT, 2014 WI 125, ¶30,

359 Wis. 2d 30, 856 N.W.2d 486 (quoting Hastings Realty Corp. v.

Texas Co., 28 Wis. 2d 305, 310, 137 N.W.2d 79 (1965)), we also

note that, provided the damage does not amount to a regulatory

taking of the property, Wisconsin. Stat. § 32.09(6)(b) allows

the    state      "to     deprive    or      restrict     such   access     without

compensation under any duly authorized exercise of the police
power."

               1. DOT Exercises the Police Power When It
                Designates a Highway "Controlled-Access"
      ¶19    By means of Wis. Stat. § 84.25, the controlled-access

highway statute, the legislature has authorized DOT to designate

up    to    1,500       miles   of    heavily        traveled,   rural     highways

"controlled-access." This is a tightly circumscribed power, and

the designation can be made only if DOT first takes the specific
steps enumerated in Wis. Stat. § 84.25(1). Among other things,

                                          13
                                                                     No.2012AP2520



DOT must conduct "traffic engineering surveys, investigations

and studies" to determine whether the average traffic potential

for the highway is in excess of 2,000 vehicles per 24-hour day.

Wis. Stat. § 84.25(1). Before the controlled-access designation

can be made, DOT is required to hold a public hearing on the

matter following notice by publication in a county newspaper in

the county in which the highway lies. Id. If, after the required

surveys and investigations and the required public notice and

hearing, DOT then finds that both the traffic potential is above

2,000 vehicles a day "and that the designation of the highway as

a   controlled-access       highway    is     necessary     in   the   interest      of

public safety, convenience and the general welfare," DOT "shall

make its finding, determination and declaration to that effect,

specifying the character of the controls to be exercised." Id.

Copies of the finding, determination and declaration must be

recorded with the register of deeds and filed with the county

clerk as well as published in the same newspaper as notice of

the   hearing.       Once    the     publication      has    taken     place,     the
designation of "controlled-access" becomes effective. Id.

      ¶20    It is this designation of a highway as "controlled-

access"     that    must    be   "necessary     in    the   interest     of    public

safety, convenience and the general welfare . . . ." Wis. Stat.

§ 84.25(1). Thus, it is the designation that is an exercise of

the   police       power.   Surety    Savings,       54   Wis. 2d at     443    ("The

designation of a highway as a controlled-access highway is an

exercise of the police power."). The designation of a highway as
"controlled-access" serves as a precondition for the operation
                                         14
                                                                       No.2012AP2520



of the other subsections of Wis. Stat. § 84.25, the controlled-

access highway statute. These subsections grant DOT expansive

powers after it has properly designated part or all of a highway

"controlled-access," including             authority over how the general

public and abutting property owners access the highway. See Wis.

Stat. § 84.25(3)-(5), (7)-(10), (13). Once the highway has been

designated "controlled-access," the statute authorizes DOT to

subsequently change the access points in whatever way it "deems

necessary or desirable."12

    2.     The Effect of a Controlled-Access Highway Designation
          on the Rights of Users and Abutting Property Owners
     ¶21    Wisconsin        Stat.    § 84.25     explains     how   the     rights    of

users     and    abutting      property        owners   are    restricted      by     the

designation      of    the    highway     as    "controlled-access."         See    Wis.

Stat. § 84.25(4)-(6), (11), (12). Pertinent here, the statute

states    that     "[n]o     person    shall     have    any   right    of    entrance

upon . . . any controlled-access highway, or to or from abutting

lands     except      at     places   designated        and    provided      for    such
purposes, and on such terms and conditions as may be specified

from time to time by the department." Wis. Stat. § 84.25(5). The


     12
       The    statute     cannot    authorize    unconstitutional
deprivations of property without just compensation; thus, in
order to exercise the police power to change an abutting owner's
access to the highway without paying compensation, DOT must
provide some access to the property that is not so circuitous as
to deprive the abutting owner of all or substantially all
beneficial use of the property. Pursuant to Wis. Stat. § 84.25,
DOT may change access in whatever way it deems "necessary or
desirable" within these constitutional boundaries.


                                           15
                                                                        No.2012AP2520



statute also expressly curtails the access rights of abutting

property        owners,      so     that    "[a]fter        the   designation      of    a

controlled-access highway, the owners . . . of abutting lands

shall have no right or easement of access, by reason of the fact

that their property abuts on the controlled-access highway or

for     other        reason,       except   only     the      controlled      right     of

access . . . ."           Wis.      Stat.    § 84.25(6).          Pursuant    to      this

subsection,          abutting       property       owners     lose    any     right     to

compensation under Wis. Stat. § 32.09 for a change in access to

the highway, provided some access remains, at the moment DOT

makes the "controlled-access" designation. See Nick, 13 Wis. 2d

at 515 ("The situation regarding the question of damages [for

diminution of value of the property due to a loss of direct

access     to    a    controlled-access           highway]    was    frozen   when      the

commission declared highway 30 a controlled-access highway.").

      ¶22       The controlled-access highway statute is unique in its

operation against abutting property owners,13 and consequently

the legislature limited DOT's authority to exercise the police
power      and        make     a     "controlled-access"            designation.        The

legislature          prescribed      elaborate     procedures,       including     public


      13
       As will be discussed below, the other statutes that
comprise Wis. Stat. ch. 84, the State Trunk Highways chapter,
contain different language regarding compensation to abutting
property owners than does the controlled-access highway statute.
Consequently, the access rights of abutting property owners are
affected differently by the designation of the highway as
"controlled-access" than by actions taken by the DOT pursuant to
other statutes in the chapter.


                                             16
                                                                            No.2012AP2520



notice and hearing, which DOT must follow to designate a highway

"controlled-access."         Furthermore,              the    legislature     limited      the

amount of highway DOT can designate "controlled-access" to 1,500

miles.     DOT    cannot    change         or        restrict      an    abutting     owner's

existing    access     to    a     State        trunk        highway14     without     paying

compensation      pursuant       to   Wis.           Stat.    § 32.09     unless     DOT   has

validly designated the highway "controlled-access" and alternate

access to the highway has been provided. An abutting property

owner's opportunity to object to DOT's exercise of the police

power comes at the time of the hearing on whether to designate

the highway "controlled-access." After a valid controlled-access

designation has been made, however, DOT may change an abutting

owner's access to the highway without compensation, pursuant to

Wis. Stat. § 84.25(3), in whatever way it "deems necessary and

desirable" as long as it provides other access that does not

deprive     the    abutting        owner        of      all       or    substantially      all

beneficial use of the property. After a valid controlled-access

designation is made, the abutting owner's rights are curtailed——
and the DOT subsequently acts——pursuant to a duly authorized

exercise of the police power.

              3. Hoffer's Direct Access was Eliminated
             Pursuant to an Exercise of the Police Power
    ¶23     Hoffer concedes that "DOT can deprive or restrict an

abutting     owner's       right      of    access           to    a    highway      'without

    14
       Provided the State trunk highway has not otherwise been
designated a freeway pursuant to Wis. Stat. § 84.295 or
designated an interstate highway pursuant to Wis. Stat. § 84.29.


                                                17
                                                                               No.2012AP2520



compensation under any duly authorized exercise of the police

power.'"15     Hoffer     further         concedes     that       the    designation         of   a

highway as controlled-access is a duly authorized exercise of

the   police     power       and     that    DOT    followed       all    of    the    required

procedures      in     Wis.     Stat.       § 84.25(1)       to    designate       STH       19   a

controlled-access            highway.16      Hoffer       argues,       however,      that    the

controlled-access highway statute does not grant DOT the power

to    subsequently       eliminate          its     direct      access    to     STH    19    and

replace it with more circuitous access. Rather, Hoffer claims

that Wis. Stat. § 84.25 grants DOT "authority to regulate an

abutting owner's direct access . . . to an existing State trunk

highway      without     paying       compensation         to     the    owner,       but    such

authority is not granted to eliminate that access." Hoffer's

argument      rests     on     its    emphasis       of    certain       language       in    the

statute      which     grants      DOT      authority      to     prohibit      anyone       from

entering or leaving the highway "except at places designated and

provided for such purposes" and that abutting owners have no

right of access "except only the controlled right of access."
Hoffer       claims      that        by     using     the       words      "except"17         and

       15
            See n.4.
       16
            See n.3.
       17
       Hoffer does not explain how the word "except" is meant to
withhold DOT's authority to eliminate access points. Presumably,
Hoffer's theory is that by allowing DOT to prohibit anyone from
entering the highway "except" at places "designated and provided
for such purposes" by the department, the legislature granted
DOT authority over the rest of the highway but not over the
preexisting access points.


                                               18
                                                                         No.2012AP2520



"controlled," the legislature indicated its intent to withhold

from   DOT     authority        to   eliminate       an   abutting      owner's     direct

access to a controlled-access highway. Hoffer insists that DOT's

authority       to     regulate      does     not       include   the      authority     to

eliminate preexisting direct access points and replace them with

more circuitous access to a controlled-access highway.

       ¶24    Hoffer is mistaken. Its proposed construction is at

odds not only with the plain language of the statutes, but with

the clear holdings of our case law. There are three reasons why

Hoffer's proposed interpretation cannot be correct.

       ¶25    First,       Wis.      Stat.        § 84.25(3)      states     that       "the

department may use an existing highway . . . for a controlled-

access       highway . . . and         so    regulate,       restrict       or    prohibit

access to or departure from it as the department deems necessary

or desirable." This very precise language indicates that the

legislature granted expansive authority to DOT to change access

to a controlled-access highway. By allowing DOT to designate an

existing highway "controlled-access" and thereafter "regulate,
restrict      or     prohibit     access     to    or   departure    from    it    as    the

department         deems     necessary       or     desirable,"      the     legislature

granted      DOT     broad    control       over    the    entire    portion      of    the

existing highway that has been designated "controlled-access,"

including placement and replacement of access points. Because it

is self-evident that elimination of direct access points is a

means of "restrict[ing] or prohibit[ing] access," Hoffer cannot

be correct when it argues that the statute does not grant DOT
authority to eliminate Hoffer's direct access points.
                                             19
                                                                                 No.2012AP2520



       ¶26    Second, Wis. Stat. § 84.25(5) states that "[n]o person

shall       have     any    right      of     entrance"         to     a    controlled-access

highway,      "or     to    or     from     abutting          lands,"      except       at    places

designated for such purposes "and on such terms and conditions

as    may    be    specified       [by      the   department]          from      time    to    time"

(emphasis added). The phrase "from time to time" indicates 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.          See     Surety        Savings,         54

Wis. 2d at          444-45        (holding         that        Wis.        Stat.        § 84.25(5)

"demonstrate[s]            the   legislature's              intent    to   give     the      highway

commission          continuing         power           to     review       and      modify          its

authorizations         for       access      to    or       across     a    controlled-access

highway"). Replacing direct access with a more circuitous route

is inarguably a change of the "terms and conditions" by which an

abutter is allowed to enter the highway. We cannot accept a

construction of a statute that does not "give reasonable effect

to    every        word,      avoiding        both          surplusage        and     absurd         or
unreasonable results." Crown Castle USA, 339 Wis. 2d 252, ¶13

(citing Kalal, 271 Wis. 2d 633, ¶46). Hoffer's reading of the

statute ignores that part of § 84.25(5) which expressly vests

DOT    with       authority      to   change       the       "terms     and    conditions"          of

access       "from     time      to    time."          Thus,    this       argument       must       be

rejected.

       ¶27    Third,        Wis.      Stat.       § 84.25(6)         states       that       once     a

highway is designated controlled-access, abutting owners "shall
have no right or easement of access, by reason of the fact that
                                                  20
                                                                                      No.2012AP2520



their property abuts on the controlled-access highway or for

other       reason,         except           only        the        controlled             right          of

access . . . ."             Wis.        Stat.           § 84.25(6).             This         subsection

eliminates an abutting property owner's right to compensation

under   § 32.09(6)(b)            for     a    change          to    existing         access     at    the

moment DOT designates the highway "controlled-access." See Nick,

13   Wis.     2d    at     515.    Replacement            access        which        results         in   a

circuitous         route     rather      than       a    direct        one      is     a     lawful——if

regrettable——result of controlling access. See, e.g., Carazalla

v.   State,      269     Wis.     593,       71    N.W.2d       276    (1955)        (holding        that

circuity of travel is not a compensable item of damages); Nick,

13   Wis. 2d at        514      ("if     no       land    is       taken     for     the      converted

highway but the abutting landowner's access to the highway is

merely made more circuitous, no compensation should be paid,");

McKenna     v.      State     Highway         Comm'n,          28     Wis. 2d 179,            184,    135

N.W.2d 827 (1965) ("There is no taking in the sense required by

the statute, where, as in this case, another access route is

available.");          Stefan      Auto       Body       v.    State       Highway         Comm'n,        21
Wis. 2d 363,         369-74,       124       N.W.2d 319            (1963)       (noting        that       in

controlled-access            highway         cases       circuity       of      travel        resulting

from a changed access point is not compensable).

      ¶28     In     the     present          case,       DOT       conducted          the     required

traffic     engineering           surveys,          investigations,              and       studies        to

designate STH 19 "controlled-access." DOT held a public hearing

on the matter on May 4, 2002, at the Milford Town Hall in

Jefferson        County         after        giving       notice           by      three       separate
publications        in     two    separate          Jefferson         County         newspapers.          It
                                                   21
                                                                               No.2012AP2520



found    that     the    potential        traffic    on       STH    19       exceeded      2,000

vehicles per day and that it was necessary in the interest of

public safety, convenience, and the general welfare to designate

STH 19 "controlled-access." In sum, DOT did everything necessary

to    validly     designate        STH    19     "controlled-access."                Upon    that

designation Hoffer lost its right to be compensated pursuant to

Wis.    Stat.     § 32.09(6)(b)           for    a   change         to       existing    access

resulting in circuity of travel. By the time Hoffer's direct

access was eliminated, the controlled-access designation of STH

19 had been made, Hoffer's right of access had been curtailed to

the "controlled right of access," DOT had determined it was

"necessary       or     desirable"       to     change     Hoffer's           access    to    the

highway, and DOT provided alternate access to Hoffer's property.

       ¶29   In   light       of   the    foregoing,       we       conclude      that      DOT's

replacement of Hoffer's direct access with circuitous access to

a controlled-access highway was done pursuant to an exercise of

the     police    power       duly    authorized         by     Wis.         Stat.      § 84.25.

Consequently the elimination of Hoffer's direct access to STH 19
was not compensable under Wis. Stat. § 32.09(6)(b).

                 B. IN CONTROLLED-ACCESS HIGHWAY CASES
         ABUTTING PROPERTY OWNERS ARE PRECLUDED FROM SEEKING
            COMPENSATION UNDER WIS. STAT. § 32.09(6)(b) FOR
       DAMAGE TO THE PROPERTY RESULTING FROM A CHANGE IN ACCESS
       ¶30   As       noted    above,         when   DOT      designates          a     highway

"controlled-access," an abutting owner's right to compensation

pursuant     to    Wis.       Stat.      § 32.09(6)(b)        for        a    replacement      of

existing access is eliminated. The abutting owner's remaining
property right of access is the controlled right of access and

                                                22
                                                                               No.2012AP2520



not   the      right         to    access      as        it     existed       prior     to     or

contemporaneously with the highway's designation as "controlled-

access." The right of access

      involves only the right to enter and leave the
      property without being forced to trespass across the
      land of another. It does not include any right to
      develop property with reference to the type of access
      granted or to have access at any particular point on
      the boundary lines of the property.
Surety     Savings,          54   Wis. 2d at         444        (emphasis       added).      The

controlled right of access is also subject to "such terms and

conditions as may be specified from time to time by [DOT]." Wis.

Stat. § 84.25(5). Requiring an abutting property owner to access

a controlled-access highway by a more circuitous route rather

than directly is a "term[] and condition[]" of access and a

lawful means of "controlling" access. Consequently, this court

has stated that "[w]here access to a highway is controlled under

the exercise of the police power and reasonable access remains,

no    compensation           is        required."        Schneider        v.      State,       51

Wis. 2d 458,          462,     187      N.W.2d 172        (1971)       (citing       Nick,     13

Wis. 2d 511). In both Schneider and Surety Savings, we held that

because DOT had changed the abutting property owners' access

pursuant to the controlled-access highway statute, the abutting

property    owners       were     precluded        from       seeking     compensation       for

diminution       of    value      of    the   property         that    resulted       from   the

changed     access.      See      Schneider,        51    Wis. 2d at        463-64;     Surety

Savings,    54    Wis. 2d at           443.   Hoffer          states   that    the    property

owners    in   neither        case      challenged        the    replacement       access      as
"unreasonable," and contends that because it has made such a

                                              23
                                                                                No.2012AP2520



challenge it is due compensation for diminution of value damages

if a jury determines its replacement access is unreasonable. For

the reasons discussed below, we disagree.

             1. A Taking Occurs Only if the Access Provided
              Deprives the Abutting Property Owner of All or
            Substantially All Beneficial Use of the Property
      ¶31    A     taking      must     occur      before        a       viable      claim        for

compensation       can       arise.   Howell       Plaza,    Inc.         v.    State      Highway

Comm'n, 92 Wis. 2d 74, 80, 284 N.W.2d 887 (1979) (hereinafter
Howell Plaza II). No compensable taking occurs when DOT changes

an   abutting      property       owner's       access      to       a    controlled-access

highway if other access is provided that does not deprive the

owner   of       all    or    substantially         all     beneficial              use    of     the

property.     Additionally,           "duly   authorized"            acts      of    the    police

power that restrict or deprive access to a highway from abutting

lands are not compensable pursuant to Wis. Stat. § 32.09(6)(b).

When no taking compensable pursuant to Wis. Stat. § 32.09(6)(b)

has occurred, there is nothing for a jury to determine pursuant

to Wis. Stat. § 32.09(6)(b). Thus, in controlled-access highway

cases, abutting property owners are precluded from compensation
under Wis. Stat. § 32.09(6)(b) as a matter of law because no

compensation       is    possible      pursuant      to     that         statute.         Making    a

claim that the access given is unreasonable does not transform

an   act     that        is    noncompensable          pursuant            to       Wis.        Stat.

§ 32.09(6)(b) into a compensable one.

      ¶32    This does not mean, however, that the provision of
alternate access to a controlled-access highway precludes the


                                              24
                                                                             No.2012AP2520



abutting    property        owner    from        compensation          in    all        possible

contexts.     Changes in access to a controlled-access highway may

support a claim pursuant to Wis. Stat. § 32.10 for a regulatory

taking of the property. "The protection of public rights may be

accomplished by the exercise of the police power unless the

damage to the property owner is too great and amounts to a

confiscation."       Just,    56    Wis. 2d at       15.    The     abutting            property

owner may not be deprived of all or substantially all beneficial

use of his property without compensation by means of an exercise

of the police power or otherwise. See E-L Enterprises, Inc., v.

Milwaukee     Metro.     Sewerage         Dist.,        2010      WI        58,        ¶37,     326

Wis. 2d 82, 785 N.W.2d 409. "Whether a taking [pursuant to Wis.

Stat.     § 32.10]     has     occurred           depends       upon         whether           'the

restriction      practically        or    substantially             renders            the     land

useless for all reasonable purposes.'" Just, 56 Wis. 2d at 15

(quoting    Buhler     v.     Racine      Cty.,      33    Wis. 2d 137,                143,    146

N.W.2d 403 (1966)).

    ¶33     If   the   access       DOT   provides         to   a      controlled-access
highway     deprives     the       abutting       property        owner           of     all    or

substantially all beneficial use of the property, DOT has taken

the property and the change in access may support an inverse

condemnation     claim      pursuant      to     Wis.     Stat.     § 32.10.            However,

"even if a highway construction project results in damages that

are compensable under a particular statute, those damages cannot

be recovered in a claim brought under the wrong statute." 118th

Street, 359 Wis. 2d 30, ¶33. The proper mechanism for pursuing
compensation for damages resulting from a change in access when
                                            25
                                                                         No.2012AP2520



DOT acts pursuant to the controlled-access highway statute is to

bring an inverse condemnation claim under Wis. Stat. § 32.10.

Thus, even had Hoffer's replacement access deprived it of all or

substantially all beneficial use of its property, it could not

recover under the Wis. Stat. § 32.09(6)(b) claim it has pursued

here.

     ¶34      We recognize that this is a high standard for owners

of   property      abutting        a     controlled-access           highway   to    meet.

Controlled-access highways are, however, limited and unique, and

the legislature granted DOT authority to regulate access to them

under the police power in whatever way DOT deems necessary and

desirable      provided     the        abutting    property      owner    retains        some

access   to    the      highway.       The   legislature       further    codified        the

principle      that     valid   exercises          of   the    police    power      do   not

require payment under the just compensation statute, Wis. Stat.

§ 32.09, except in limited circumstances. We will not intrude

upon these legislative choices.

                2. It is Presumed that the Legislature
            Purposefully Omitted a Reasonableness Standard
              from the Controlled-Access Highway Statute
     ¶35      An analysis of the surrounding statutes in Wis. Stat.

ch. 84 further compels the conclusion that "reasonableness is

not the correct legal standard to apply" when DOT changes an

abutting property owner's access to a controlled-access highway

and thus no jury is required in controlled-access highway cases.

Hoffer Properties, slip. op., ¶7. "When the legislature enacts a
statute,      it   is    presumed       to   act    with      full   knowledge      of    the


                                             26
                                                                    No.2012AP2520



existing laws, including statutes." Mack v. Joint Sch. Dist. No.

3,    92    Wis. 2d   476,   489,    285    N.W.2d 604    (1979).     The    freeway

statute, Wis. Stat. § 84.295, states that "reasonable provision

for    public    highway     traffic       service   or   access     to     abutting

property shall be provided by means of frontage roads . . . or

the right of access to or crossing of the public highway shall

be acquired on behalf of the state" when DOT is undertaking a

freeway project (emphasis added). Identical language appears in

Wis. Stat. § 84.29, the interstate highway statute.

       ¶36    These statutes command that if DOT does not provide

reasonable access to the highway by means of frontage roads when

undertaking      a    freeway   or     interstate     highway       project,    the

abutting property owners are due compensation under Wis. Stat.

§ 32.09 for a taking of their access rights.18 This language is

conspicuously absent from the controlled-access highway statute.

Rather, Wis. Stat. § 84.25(6) states that owners "of abutting

lands shall have no right or easement of access . . . except

only the controlled right of access." We presume that had the
legislature intended to include reasonableness as a component of

Wis. Stat. § 84.25 and allow for compensation under Wis. Stat.

§ 32.09, it would have included this language in the statute, as

it did for freeways and expressways in Wis. Stat. § 84.295 and

for interstate highways in Wis. Stat. § 84.29.
       18
       Wisconsin Stat. § 990.01(2) governs the construction of
Wisconsin laws, and it states that "[a]cquire," when used in
connection with a grant of power to any person, includes the
acquisition by purchase, grant, gift or bequest. It includes the
power to condemn in the cases specified in s. 32.02.


                                           27
                                                                         No.2012AP2520



      ¶37       The legislature, however, omitted this command from

Wis. Stat. § 84.25. When DOT acts pursuant to the controlled-

access      highway       statute,      abutting    property        owners        must    be

compensated for DOT's "acquisition" of their property only if

DOT does not provide some access or if the access provided is so

circuitous as to amount to a regulatory taking of the property.

Consequently,           when     DOT    provides     alternate,           albeit         more

circuitous, access to abutting lands from a controlled-access

highway,        no      taking    compensable       pursuant        to     Wis.      Stat.

§ 32.09(6)(b) occurs. It is axiomatic that where there is no

compensable taking there will be no compensation. "[T]here must

be a taking before there can be a claim for just compensation."

Howell Plaza II, 92 Wis. 2d at 80; see also Surety Savings, 54

Wis. 2d at        444     ("Since      appellants    have     always        had     access

available        to     them,    no    property     right     was        taken.").       The

legislature did not require DOT to either provide reasonable

access to a frontage road or to acquire the access rights of

abutting property owners when it acts pursuant to Wis. Stat.
§ 84.25. Thus, in controlled-access highway cases, provision of

some access preserves the abutting property owner's controlled

right      of   access     to    the    property;    no     jury    is     required       to

determine whether the replacement access is reasonable because

in   controlled-access           highway   cases    reasonableness         is     not     the

standard to apply to determine if compensation is due pursuant

to Wis. Stat. § 32.09(6)(b).19

      19
           We reiterate, however, that circuitous access amounting
                                                       (continued)
                                           28
                                                                       No.2012AP2520



                   3. The Cases Hoffer Relies on Are
              Eminent Domain Cases, Not Police Power Cases
      ¶38     Hoffer attempts to distinguish Surety Savings and its

predecessors, in which we held that abutting property owners

could not recover diminution of value damages caused by changes

in   access    to   the   highway,    by     arguing       that    those   cases   were

abrogated     by    the   decisions   in        National    Auto    Truckstops,     263

Wis. 2d 649,        and   Seefeldt     v.        DOT,      113    Wis. 2d 212,      336

N.W.2d 182 (Ct. App. 1983). We disagree.

      ¶39     Both cases are easily distinguishable. In the present

case DOT was exercising the police power pursuant controlled-

access highway statute, while in National Auto Truckstops and

Seefeldt it was not. In National Auto Truckstops, the highway at

issue (Highway 12) had not been designated "controlled-access."

Thus,   unlike      the   present    case,       the    change    in   National    Auto

Truckstops' access "was not a 'duly authorized exercise of the

police power.'" National Auto Truckstops, 263 Wis. 2d 649, ¶16

(emphasis in original). Consequently Wis. Stat.                        § 32.09(6)(b)
applied and a jury determination of reasonableness was required




to a regulatory taking of the property may be compensable under
Wis. Stat. § 32.10.


                                           29
                                                                            No.2012AP2520



to determine the amount of compensation due, if any.20 National

Auto    Truckstops        is    inapplicable        to   controlled-access           highway

cases       because       no    compensation        is     due      under     Wis.    Stat.

§ 32.09(6)(b) when DOT exercises the police power pursuant to

Wis. Stat. § 84.25. In fact, the plaintiffs in National Auto

Truckstops had conceded that if DOT had designated the highway

"controlled-access" under Wis. Stat.                       § 84.25, no compensation

would       be    due   for    the   elimination      of    their    direct       access    to

Highway 12. See id., ¶8. Given that DOT did act pursuant to the

controlled-access highway statute vis-à-vis Hoffer's property,

National Auto Truckstops is unavailing to Hoffer.

       ¶40        Seefeldt      is      similarly          unhelpful         to      Hoffer.

Preliminarily, as a court of appeals case, Seefeldt could not

alter       the    holding     of    Surety   Savings.      See     Cook    v.    Cook,    208

Wis. 2d 166, 189, 560 N.W.2d 246 (1997) ("The supreme court is

the    only       state   court      with   the    power    to    overrule,       modify    or

withdraw language from a previous supreme court case."). More to

the point, Hoffer's reliance on Seefeldt is misplaced because,


       20
       We note there is a tension between the language of Wis.
Stat. § 32.09(6)(b) stating that in partial takings cases
compensation is due for "[d]eprivation or restriction of
existing right of access to highway from abutting land [unless
restricted by an exercise of the police power]" and our holding
in National Auto Truckstops that no compensation is due to an
abutting   property  owner  whose  existing  access   has  been
restricted if reasonable access remains even when DOT has not
exercised the police power. Reconciliation of the two is not
necessary for the determination of this case and it was neither
briefed nor argued, so we will decline to address the matter
further.


                                              30
                                                                      No.2012AP2520



like in National Auto Truckstops, Seefeldt did not implicate the

controlled-access highway statute. In Seefeldt, DOT was acting

pursuant to the freeway statute, Wis. Stat. § 84.295. Seefeldt,

113    Wis. 2d at     214-15.     As     noted   above,      the   freeway     statute

contains      language   that     the    controlled-access         highway     statute

does   not:      when    DOT    designates       a    preexisting     highway       as   a

freeway pursuant to Wis. Stat. § 84.295, "reasonable provision

for    public    highway       traffic    service       or   access    to     abutting

property shall be provided by means of frontage roads . . . or

the right of access to or crossing of the public highway shall

be acquired      on behalf of the state." Wis. Stat. § 84.295(5)

(emphasis added). This language in § 84.295(5) requires DOT to

pay compensation pursuant to Wis. Stat. § 32.09 if it does not

provide reasonable access to the freeway. In Seefeldt, DOT had

neither built a frontage road nor acquired Seefeldt's access

rights. Seefeldt, 113 Wis. 2d at 215-16. Consequently, a jury

determination of reasonableness was required to assess how much,

if any, compensation was due under Wis. Stat. § 32.09. Id. at
220-21.

       ¶41    Unlike in National Auto Truckstops or Seefeldt, in the

present case, DOT exercised the police power pursuant to the

controlled-access        highway       statute   to    replace     Hoffer's        direct

access with circuitous access. As we have explained previously,

Wis.    Stat.    § 32.09(6)(b)          precludes      compensation        under     that

subsection for such exercises of the police power. National Auto

Truckstops      and   Seefeldt     did     not       alter   the    rule     that     the
provision of alternate access precludes compensation pursuant to
                                           31
                                                                 No.2012AP2520



Wis.    Stat.   § 32.09(6)(b)       in    controlled-access      highway   cases

because neither case involved Wis. Stat. § 84.25. Likewise, they

do not apply to this case.

                   C. HOFFER WAS FULLY COMPENSATED FOR
             ALL DAMAGE CAUSED BY THE TAKING OF THE .72 ACRE
       ¶42   Hoffer   has   never    articulated     how   the   diminution      of

value caused by the loss of direct access to STH 19 relates to

the    compensation   due   for     the    taking   of   the   .72   acre.21   Our


       21
       At the circuit court, Hoffer stated that "this is a
partial taking eminent domain valuation case," mentioned that
.72 of an acre was taken, and then argued that Hoffer was being
"denied his constitutional right to be paid compensation by DOT
for its taking of the subject property's access rights to STH
#19." In its motions to that court, Hoffer refers only to "the
taking" and never differentiates between the loss of access
points and the .72 acre.

     At the court of appeals, Hoffer again stated that "this is
a   partial   taking   eminent   domain  valuation   case"   and
characterized the case as relating "to compensation for the
taking of access rights." Hoffer stated that "DOT's STH #26
project necessitated a partial taking from the subject property"
and claimed that elimination of direct access to STH 19 was one
of the "aspects" of the taking. Hoffer argued that "[d]ifferent
legal standards apply when there has not been a taking as
opposed to when there has been a partial taking. . . . In the
partial taking situation, in accordance with Wisconsin Statutes,
section 32.09(6), the owner is entitled to compensation for
damages . . . accruing to the owner's remaining property as a
result of the taking." (Emphasis added).

     In its brief to this court, Hoffer states that "[t]his is a
partial taking eminent domain valuation case. . . .The issue in
this case relates to compensation for the taking of access
rights." Hoffer then states that "DOT's STH #26 project
necessitated a partial taking from the subject property" and
again characterized the termination of its direct access to STH
19 as an "aspect" of the taking.


                                          32
                                                                   No.2012AP2520



formulation of Hoffer's argument is as follows:                    the taking of

the .72 acre and the termination of Hoffer's direct access to

STH 19 are not two distinct acts, but rather a single "taking."

According to Hoffer this single taking resulted in a diminution

in value of its property for which it is owed compensation.

Thus, (the argument runs), the elimination of its direct access

is   compensable      under      Wis.    Stat.   § 32.09(6)(b)          even     though

Hoffer's direct access points were not on the land taken because

some portion of Hoffer's land was taken by eminent domain.

     ¶43    Hoffer     mistakenly       styles   its    argument    upon       eminent

domain when in actuality it prosecutes a separate and distinct

claim based upon a challenge to DOT's exercise of the police

power.22    Hoffer    is   not   challenging     the    reasonableness          of   the

$90,000 valuation of the .72 acre of land taken pursuant to

eminent domain; rather, it is challenging the kind of remedies

available    for     the   state's      legitimate     exercise    of    the    police

power. Hoffer attempts to characterize this argument as a matter

of compensation, but it is really a matter of whether it had a
property interest in direct access to the highway.

     ¶44    Our decisions in 118th Street and Jantz v. DOT, 63

Wis. 2d     404,     217   N.W.2d 266      (1974)    illustrate     why        Hoffer's

argument is unavailing.



     22
       At oral argument, Hoffer stated it was only seeking
compensation for loss of direct access to STH 19 and claimed
that the difference between a taking under eminent domain and
the police power was just "a label."


                                          33
                                                                         No.2012AP2520



      ¶45     In 118th Street,23 we held that "compensation for a

taking cannot include damages for a lost point of access to a

highway     if    the    point   of     access    was    lost    because      of   an    act

separate from the taking, such as the highway's relocation." 359

Wis. 2d 30,       ¶46.     There,      we   cited       with    approval      Jantz,      63

Wis. 2d 404, a case almost directly analogous to Hoffer's case.

See   118th       Street,    359       Wis. 2d 30,        ¶¶47-48.       In    Jantz,      a

restaurant owner sought compensation for diminution of value of

his business after DOT took .38 acre of Jantz's land in order to

expand      the   highway.       DOT    also     relocated      his   access       to    the

highway. Jantz, 63 Wis. 2d at 407-09. The .38 acre taken was

separate from Jantz's highway access point. Id. We held that the

diminution of value was properly excluded from the compensation

for   the    partial      taking       "because    those       damages   were      not   'a

consequence of the taking of .38 acre of land . . . .'" 118th

Street, 359 Wis. 2d 30, ¶48 (quoting Jantz, 63 Wis. 2d at 412).

      ¶46     Here——just like the property owners in 118th Street

and Jantz——Hoffer did not lose its direct access points to the
highway because of the taking of the .72 acre of its land;

rather, it lost its direct access points due to DOT's decision

to restrict access to STH 19 as part of the STH 26 relocation


      23
       The issue in 118th Street was whether diminution of value
caused by the relocation of (and the LLC's consequent loss of
direct access to) 118th Street should be included in the
compensation for the taking of a temporary limited easement
under Wis. Stat. § 32.09(6)(g) when the temporary limited
easement was used to create additional access to the property.


                                            34
                                                                  No.2012AP2520



project. Two separate acts occurred:               (1) the taking of Hoffer's

.72 acre, and (2) the elimination of Hoffer's direct access

points to STH 19 pursuant to the police power. None of Hoffer's

access points were on the land taken. Hoffer has consistently

argued that the diminution of value to the property was caused

by the loss of direct access to STH 19, not by the taking of the

.72 acre. The diminution of value of Hoffer's property was not a

consequence of the taking of the .72 acre, and accordingly those

damages should not be included in the compensation for the .72

acre taken.

                               V.     CONCLUSION

      ¶47      First, we hold that Wis. Stat. § 84.25(3) authorizes

DOT to change Hoffer's access to STH 19 in whatever way it deems

"necessary or desirable." Such changes, including elimination of

direct    access    points,    are   duly    authorized     exercises     of    the

police power and are not compensable under Wis. Stat. § 32.09 as

long as alternate access is given that does not deprive the

abutting owner of all or substantially all beneficial use of the
property. Second, we hold that when DOT changes an abutting

property owner's access to a controlled-access highway but other

access    is    given   or   exists,   the    abutting     property     owner     is

precluded from compensation pursuant to Wis. Stat. § 32.09(6)(b)

as a matter of law and no jury determination of reasonableness

is   required.     Reasonableness      is    the   wrong   standard     to   apply

because     the   provision    of    some    access   preserves    an   abutting

property owner's right of access to a controlled-access highway,
and thus no taking compensable under Wis. Stat. § 32.09(6)(b)
                                        35
                                                                  No.2012AP2520



occurs. Accordingly, Hoffer is precluded from compensation under

Wis.    Stat.       § 32.09(6)(b)     because     alternate     access   to     the

property      was    provided    by   the    Frohling    Lane    extension.       We

therefore affirm the court of appeals.

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

affirmed.

       ¶48    REBECCA G. BRADLEY, J., did not participate.




                                        36
                                                                        No.    2012AP2520.ssa


       ¶49    SHIRLEY S. ABRAHAMSON, J.                 (concurring).          I conclude,

as does Justice Gableman's lead opinion, that the elimination of

direct access from Hoffer's property to State Highway 19 is a

duly       authorized      exercise     of    the       police    power       and    is     not

compensable under Wis. Stat. § 32.09.1

       ¶50    I     do    not,    however,    join       Justice    Gableman's            long,

complex opinion.

       ¶51    The        lead    opinion     is,    for     example,          unnecessarily

replete with discussion of when the elimination of direct access

to a controlled access highway may support a claim for inverse

condemnation,2           "depriv[ing]       the     abutting       owner       of    all     or

substantially all beneficial use of the property."3

       ¶52    The parties' references to inverse condemnation are

cursory, not full or adversarial.                       As a result, I would not

discuss inverse condemnation.                     "The rule of law is generally

best       developed       when    matters        are    tested    by      the      fire    of

adversarial briefs and oral arguments."                     Maurin v. Hall, 2004 WI

100, ¶120, 274 Wis. 2d 28, 682 N.W.2d 866 (Abrahamson, C.J. &
Crooks,       J.,        concurring)       overruled       on     other        grounds       by

Bartholomew         v.    Wis.    Patients    Comp.       Fund,     2006       WI   91,     293

Wis. 2d 38, 717 N.W.2d 216.

       ¶53    For the reasons set forth, I do not join the lead

opinion and I write separately.

       1
           Only two justices join Justice Gableman's opinion.
       2
           See, e.g., lead op., ¶¶6, 16-17, 20 n.12, 22, 33.
       3
           Lead op., ¶6.


                                              1
                                                       No.    2012AP2520.ssa


    ¶54   I   am   authorized   to   state   that   Justice    ANN   WALSH

BRADLEY joins this opinion.




                                     2
                                                                       No.    2012AP2520.dtp


     ¶55       DAVID T. PROSSER, J.                (dissenting).           The petitioner

in   this      case,     Hoffer     Properties,            LLC     (Hoffer),       asks        the

following question: "What is the standard as to when DOT must

pay compensation when it has eliminated an abutting property

owner's     direct     access     to    an     existing      controlled-access            state

trunk    highway?"           Hoffer's    answer       is    that     the    DOT    must        pay

compensation         when    a   jury    finds      that     the    replacement       access

provided by DOT is not reasonable.

     ¶56       The circuit court answered the question differently.

It denied Hoffer a jury, concluding as a matter of law that no

compensation is required if DOT provided any replacement access

to the owner.          This position is supported by the State in its

brief:     "Under      Wisconsin        law,       damage       resulting    to     property

through the exercise of the police power is not compensable.

There     is    no     compensable       taking       when       direct     access        to    a

controlled-access highway is denied as long as other access is

given or otherwise exists."

     ¶57       The lead opinion concludes that "when DOT changes an

abutting property owner's [direct] access to a controlled-access

highway     but      other    access     is    given       or    exists,     the    abutting

property owner is precluded from compensation . . . as a matter

of law and no jury determination of reasonableness is required."

Lead op., ¶6.          The lead opinion adds that "[r]easonableness is

the wrong standard to apply" because the provision of "some"

access preserves the property owner's right of access; thus, no

taking occurs.         Id.



                                               1
                                                                   No.    2012AP2520.dtp


      ¶58   The      implications       of    this      decision          are      stark.

Henceforward, juries are precluded from ever finding that the

alternative    access       provided     to   replace      direct        access     to    a

controlled-access highway is unreasonable.                    By transforming a

traditional fact question into a question of law, the court

justifies depriving property owners of their statutory right to

a jury trial and also bars circuit judges from ever finding that

alternative access is not reasonable.                   According to the lead

opinion, the only time the DOT is required to pay compensation

to    a   property    owner     for     eliminating        direct        access    to    a

controlled-access highway is when the alternative access is so

circuitous    or     so   grossly      inadequate     that    it     deprives          "the

abutting owner of all or substantially all beneficial use of the

property."    Id., ¶20 n.12.

      ¶59   Because I disagree with the lead opinion's analysis

and conclusions, I respectfully dissent.

                                          I

      ¶60   State Trunk Highway 19 (STH 19) is a Wisconsin highway

that stretches from a point near Mazomanie in Dane County to the

point where it reaches STH 16 on the east side of Watertown in

Jefferson County.         Its total length is about 60 miles.                     On June

14,   2002,   the     DOT     designated      13.76     miles       of     STH    19     as

"controlled-access"         highway,    pursuant      to    Wis.    Stat.        § 84.25.

The eastern end of the controlled-access segment in Jefferson

County was Frohling Lane in the Town of Watertown, west of the

City of Watertown.



                                          2
                                                                    No.    2012AP2520.dtp


      ¶61       Hoffer owned a 9.90-acre parcel of land abutting STH

19.     This parcel is located south of STH 19.                     It is separated

from Frohling Lane to its east by another parcel of land.                              When

STH   19    became      a    "controlled-access"         highway    in    2002,    Hoffer

retained direct access to STH 19 by means of two driveways.

      ¶62       Then,   as    the    lead   opinion      notes,    in     2008   the    DOT

undertook a highway improvement project that relocated STH 26 so

that it intersected with STH 19 just west of Hoffer's property.

Lead op., ¶8.        On December 29, 2008, as part of this project,

      DOT eliminated Hoffer's direct access to STH 19. DOT
      acquired through eminent domain both .72 acre of
      Hoffer's land as well as a temporary limited easement
      in order to create alternate access to Hoffer's
      property.   DOT tendered to Hoffer $90,000 for this
      taking. Hoffer's existing direct access to STH 19 was
      replaced by extending Frohling Lane (a north-south
      roadway that intersects with STH 19) westward to
      Hoffer's property.
Id.

      ¶63       The DOT remedied its elimination of Hoffer's direct

access     by    extending      Frohling     Lane   to    the     west,    through      the

entire width of Hoffer's property, so that Hoffer would have
access to his house and business from the south after a new

driveway was constructed, and the large parcel to the west of

Hoffer's property would have access to STH 19 by way of this new

road.      The extension of Frohling Lane is now called Groth Lane.

      ¶64       "Hoffer's      replacement       access    requires        vehicles      to

travel      roughly     1,000       feet    to   reach    STH     19."       Id.        The

owners/occupiers of the adjacent parcel to the west presumably
must travel a considerably longer distance to reach STH 19.


                                             3
                                                                     No.    2012AP2520.dtp


    ¶65        To reach Hoffer's property, a person traveling east on

STH 19 must turn right on Frohling Lane, drive to the end of the

lane, turn right on Groth Lane, find the driveway for Hoffer's

property, and then turn right into that driveway.                               Thus, as a

practical matter, the distance to be travelled is not the only

consideration        in   evaluating     whether       an    alternative        access   is

reasonable.         Multiple factors may have to be taken into account.

    ¶66        On   the   facts     here,   I    would      have    no   difficulty      in

affirming a jury determination that DOT had provided reasonable

access    to    Hoffer's        property.        The   new    access       is    no   doubt

inconvenient.         It may require special signage.                    But it is not

unreasonable in the totality of the circumstances.

    ¶67        My problem is not with the result in this case.                           My

problem is with the law created in this case——approving the fact

that a jury was never permitted to hear evidence and make a

judgment.       The lead opinion says in essence that there is no

place for a jury in these situations——that the result would be

the same if the new access required vehicles to travel 10,000

feet——closer        to    two    miles——instead        of   1,000    feet,       to   reach

STH 19.        The lead opinion says that "reasonableness" is the

wrong standard to apply in such situations because whatever the

DOT deems "necessary or desirable" cannot be found unreasonable

as a matter of law.             In my view, this is ill-advised new law.

                                            II

    ¶68        This court has stated that "a person who owns property

abutting a public street has a right of access, or right of
ingress and egress, to and from the street. . . .                               [A]lthough

                                            4
                                                                   No.    2012AP2520.dtp


this right is subject to reasonable regulations in the public

interest, it is a property right, the taking of which requires

compensation."       Nat'l Auto Truckstops, Inc. v. State, Dep't of

Transp.,     2003   WI   95,    ¶39,     263    Wis. 2d 649,        665     N.W.2d 198

(quoting Narloch v. State, Dep't of Transp., 115 Wis. 2d 419,

430,   340   N.W.2d 542      (1983)).         For    this   proposition,         Narloch

cited Schneider v. State, 51 Wis. 2d 458, 463, 187 N.W.2d 172

(1971).      Schneider, in turn, had cited Carazalla v. State, 269

Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276 (1955), and Stefan Auto

Body v. State Highway Commission, 21 Wis. 2d 363, 124 N.W.2d 319

(1963).       The    principle     above       is     codified     in     Wis.      Stat.

§ 32.09(6)(b).

       ¶69   Paragraph (b), however, also contains a qualification

to the principle: compensation is required for "[d]eprivation or

restriction of [an] existing right of access to [a] highway from

abutting land, provided that nothing herein shall operate to

restrict the power of the state . . . to deprive or restrict

such   access      without     compensation         under   any    duly    authorized

exercise of the police power."                (Emphasis added.)          Deprivations

and restrictions pursuant to Wis. Stat. § 84.25 are exercises of

the police power.

       ¶70   Put    bluntly,      the    state       does    not     have      to     pay

compensation for depriving a landowner of direct access to a

controlled-access highway.              It does not follow, however, that

reliance on the police power precludes altogether any need for

compensation.       Although paragraph (b) does not say so, it is
universally agreed that the deprivation of direct access cannot

                                          5
                                                               No.    2012AP2520.dtp


leave the property landlocked.             See Carazalla, 269 Wis. at 608b.

Some    access      must   be   provided     to     avoid   the      necessity   of

compensation.       The issue presented by this opinion is whether no

compensation is required if DOT provides any alternative access—

—even   if   that    alternative    access     is    plainly   unreasonable——so

long as the property owner cannot meet the requirements for

inverse condemnation.

       ¶71   The    State's     position     is     uncompromising:      "[D]amage

resulting to property through the exercise of the police power

is not compensable.         There is no compensable taking when direct

access to a controlled-access highway is denied as long as other

access is given or otherwise exists."                 The lead opinion adopts

this position.

       ¶72   Other judges have been less absolute.                   For example,

Justice Oliver Wendell Holmes, writing for the Supreme Judicial

Court of Massachusetts, stated:

       We assume that one of the uses of the convenient
       phrase "police power" is to justify those small
       diminutions of property rights which, although within
       the   letter   of    constitutional   protection,   are
       necessarily incident to the free play of the machinery
       of government.    It may be that the extent to which
       such diminutions are lawful without compensation is
       larger when the harm is inflicted only as incident to
       some general requirement of public welfare.        But,
       whether the last-mentioned element enters into the
       problem or not, the question is one of degree, and
       sooner or later we reach the point at which the
       constitution    applies     and     forbids    physical
       appropriation and legal restrictions alike, unless
       they are paid for.
Bent v. Emery, 53 N.E. 910, 911 (Mass. 1899) (emphasis added).



                                       6
                                                                      No.   2012AP2520.dtp


    ¶73      Hoffer   persuasively      demonstrates             that       the   spirit

conveyed by Justice Holmes has run through Wisconsin law in

cases   involving      controlled-access        highways.               Hoffer     cites

Schneider, 51 Wis. 2d 458; Surety Savings & Loan Ass'n v. State

(Division of Highways), 54 Wis. 2d 438, 195 N.W.2d 464 (1972);

Jantz   v.   State    (Division    of   Highways),          63    Wis. 2d 404,        217

N.W.2d 266     (1974);    and     Seefeldt      v.     State,          Department      of

Transportation, 113 Wis. 2d 212, 336 N.W.2d 182 (Ct. App. 1983).

These cases were preceded by Carazalla, 269 Wis. 593, and Nick

v. State Highway Commission, 13 Wis. 2d 511, 109 N.W.2d 71, 111

N.W.2d 95     (1961).        These      cases        will        be     discussed      in

chronological order.

                         Carazalla v. State (1955)

    ¶74      In Carazalla, Justice George Currie provided a broad

statement of the law:

         The general rule is that damage resulting to
    property through the exercise of the police power is
    not compensable.   We consider the following statement
    appearing in 11 McQuillin, Mun. Corp. (3d ed.), p.
    319, sec. 32.27, to be particularly pertinent to the
    facts of the instant case:

         "The question of what constitutes a taking is
    often interwoven with the question of whether a
    particular act is an exercise of the police power or
    of the power of eminent domain.     If the act is a
    proper   exercise    of   the  police   power,   the
    constitutional provision that private property shall
    not be taken for public use, unless compensation is
    made, is not applicable."

         Limited-access highways and their effect upon the
    rights of abutting property owners to compensation are
    the subject of three excellent law-review articles in
    which are cited the court decisions bearing on the
    question.   The authors of all three articles agree

                                        7
                                                           No.   2012AP2520.dtp

    that the limiting of access to a public highway
    through governmental action results from the exercise
    of the police power, and that in the case of a newly
    laid out or relocated highway, where no prior right of
    access existed on the part of abutting landowners,
    such   abutting   landowners  are   not  entitled   to
    compensation.    On the other hand, the authorities
    cited in these articles hold that where an existing
    highway is converted into a limited-access highway
    with a complete blocking of all access from the land
    of the abutting owner, there results the taking of the
    pre-existing easement of access for which compensation
    must be made through eminent domain. However, if the
    abutting landowner's access to the highway is merely
    made more circuitous, no compensation should be paid
    according to the authors of these articles . . . . In
    the instant case the plaintiff landowners still have
    their right of access to old U.S. Highway 51 which has
    not been closed off.
Carazalla,    269   Wis.   at   608a-608b     (emphasis   added;    footnotes

omitted).     In my view, Carazalla implied that alternative access

that is merely "more circuitous" is reasonable.                  It does not

address what might be unreasonable.

               Nick v. State Highway Commission (1961)

    ¶75     Petitioner     acquired       property   in   Waukesha     County

abutting STH 30, a         controlled access highway, also known as

Bluemound Road.     There had never been driveways from the parcel

directly onto Highway 30.         The petitioner was denied access to

Highway 30.    Justice Timothy Brown wrote:

         An impairment of the use of property by the
    exercise of police power, where the property itself is
    not taken by the state, does not entitle the owner of
    such property to a right to compensation. The law on
    this subject remains as we stated it in State ex rel.
    Carter v. Harper (1923), 182 Wis. 148, 153, 196 N.W.
    451,——a zoning case,

         ". . . incidental damage to property resulting
    from governmental activities, or laws passed in the
    promotion of the public welfare, is not considered a
                                      8
                                                       No.    2012AP2520.dtp

     taking of the property for which compensation must be
     made."

          The situation here bears a close analogy to the
     enactment and the effect of a zoning statute.

             . . . .

          Neither in 1951 nor thereafter . . . did the
     state, through its highway commission, take any
     portion of Reinders' land.    No doubt the control of
     his access to Highway 30 impaired the value of his
     land, the impairment increasing as any part of the
     land lay distant from Calhoun road, but at the time of
     the commission's declaration Reinders still had access
     in every part of his land to Highway 30 via use of
     Calhoun road. His access to the highway is made more
     circuitous but no part of Reinders' land was taken.
     The diminution of its value due to the exercise by the
     state of its police power in making Highway 30 a
     controlled-access highway is not recoverable.
Nick,   13    Wis. 2d at   514-15   (first   alteration      in   original;

emphasis added).

     ¶76     Justice   George   Currie   concurred,   recognizing      that

Wisconsin's less-generous position on compensation appeared to

represent a minority view:

          Courts which hold that compensation must be paid
     to the abutting landowner in all cases where all
     direct-access rights to an existing highway are barred
     by statute, even though indirect access exists by
     means of service roads or connecting highways,
     consider   that  access  rights   constitute  property
     distinct and apart from the land to which they
     appertain.   The writer of this opinion believes this
     to be erroneous and that highway-access rights are but
     one of a bundle of rights which appertain to a parcel
     of real estate.

          . . . If by reason of providing a frontage road,
     or the existence of a previously existing connecting
     highway, there is reasonable access to the controlled-
     access highway, no taking requiring compensation
     should be held to have occurred.
Id. at 517-18 (Currie, J., concurring) (emphasis added).
                                9
                                                                     No.   2012AP2520.dtp


    ¶77     In     Nick,      the    court   approved      "incidental       damage"   to

property by exercise of the police power.                        In addition, "more

circuitous" access to a controlled-access highway is very likely

to satisfy Justice Currie's "reasonable access."                           The opinion

implicitly recognizes but does not define "unreasonable" access.

                              Schneider v. State (1971)

    ¶78     Justice Connor T. Hansen wrote:

    The creation of a controlled-access highway is a
    proper exercise of the police power.    This court has
    held that the exercise of the police power allows
    injury to property without compensation. Where access
    to a highway is controlled under the exercise of the
    police power    and   reasonable access remains, no
    compensation is required.

         . . . The right of access or of ingress and
    egress of an abutting property owner is a property
    right the taking of which requires compensation.
    However, there was no issue in this case concerning
    the adequacy of access from the Schneider property by
    the   frontage  road.    Since  the   state  provided
    reasonable access to and from the Schneider property
    by a frontage road there was no taking requiring
    compensation.

            . . . .

         . . . Deprivation of direct access to a highway
    does not constitute a taking of property provided
    reasonable access remains.
Schneider,       51    Wis. 2d at        462-63    (emphasis        added;    citations

omitted).

    ¶79     The       court    in    Schneider     used    the   phrase      "reasonable

access"     five       times        in   stating     the     law,     implying      that

"unreasonable access" does not satisfy the law.

   Surety Savings & Loan Ass'n v. State (Division of Highways)
                                          (1972)

                                             10
                                                                     No.   2012AP2520.dtp


    ¶80     Justice Leo Hanley wrote for the court:

    The sole issue presented on this appeal is whether
    appellants should be compensated for damages suffered
    because of the termination of their right to direct
    access to U.S. Highway 41. . . . [I]njury to property
    resulting from the exercise of the police power of the
    state does not necessitate compensation.

         . . . The   designation  of   a   highway  as   a
    controlled-access highway is an exercise of the police
    power.

         This court has frequently held . . . that there
    is no compensable taking when direct access to a
    controlled-access highway is denied, where other
    access is given or otherwise exists.        Since the
    department in this case granted reasonable access to a
    service road when it terminated direct access to the
    highway, under the foregoing rules of law, the
    appellants are not entitled to compensation for the
    termination of their direct access.

         . . . There is no suggestion that the frontage
    road access furnished is inadequate or unreasonable.

            . . . .

         We conclude that appellants have no right to be
    compensated, under the provisions of sec. 32.09(6)(b),
    Stats., merely because access to their property has
    been made more circuitous.
Surety    Savings,    54    Wis. 2d at        442-44,        446    (emphasis      added;
citations omitted).

    ¶81     It   should     be   noted     that   the    makeup       of    the    Surety

Savings    court   was     exactly    the     same      as    the    makeup       of    the

Schneider    court    and    that    the      Surety     Savings       opinion         cites

Carazalla, Nick, and Schneider with approval.                       Where a property

owner suggests that alternative access is not reasonable, the

court cannot ignore the issue.
            Jantz v. State (Division of Highways) (1974)

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    ¶82       In Jantz Justice Robert W. Hansen quoted Schneider v.

State    at   length,     including     this   statement:          "It    [Schneider]

repeats    that   the   '. . . [d]eprivation          of   direct        access    to   a

highway    does   not     constitute    a    taking     of    property        provided

reasonable     access   remains. . . .'"         Jantz,       63     Wis. 2d at     410

(all alterations but first in original) (quoting Schneider, 51

Wis. 2d at      463).       The   Jantz      majority        again       invoked    the

"reasonable     access"    test   two   years   after        the     Surety    Savings

case.

        Seefeldt v. State, Department of Transportation (1983)

    ¶83       Judge Clair Voss of the court of appeals wrote:

    Initially, appellants had access to U.S. Highway 41.
    When U.S. Highway 41 was declared a controlled-access
    highway, the appellants' access was reduced to
    reasonable access.   Now, the appellants allege that
    even this reasonable access is being taken away as the
    result of the taking of appellants' real estate in
    conjunction with the upgrading of U.S. Highway 41 to
    freeway status.

          In general terms, the issue is whether the
    appellants have suffered a loss.    However, the real
    issue is whether the state can use a two-stage
    approach to deprive landowners of their reasonable
    access to a highway without compensating them for this
    loss.    We find that the appellants have suffered a
    loss because of this two-stage taking and, thus,
    should be compensated.




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Seefeldt, 113 Wis. 2d at 213-14 (emphasis added).1

     ¶84   These cases may be summed up as follows: There is

normally a distinction between an exercise of police power and

eminent domain.    The general rule is that damage resulting to

property through an exercise of police power is not compensable.

This general rule will prevail in any case involving a property

owner's loss of direct access to a controlled-access highway as

long as some reasonable access remains.         This principle is found

in Nick, Schneider, Surety Savings, Jantz, and Seefeldt.                It is

either stated directly or implied by reference to facts that

demonstrate   reasonable     alternative   access.       The     fact    that

alternative   access   is   "circuitous"   or   "more   circuitous"      than

before the deprivation does not render that access unreasonable

per se.    Something more deleterious is required.            Although this

court has never held that a particular exercise of the police

     1
       Recently, the Supreme Court of South Dakota evaluated a
similar two-stage taking situation in Hall v. State ex rel.
South Dakota Department of Transportation, 806 N.W.2d 217 (S.D.
2011).    Property owners sought compensation after the state
removed an interstate highway interchange adjacent to their
property; a truck stop they operated on the property ceased
operations within weeks of the interchange closure.    Hall, 806
N.W.2d at 220-21.    The property owners argued that they had
relied upon the presence of the interchange to operate their
business and that, when the state originally condemned a portion
of their property to build the interstate highway, the appraisal
used to calculate just compensation had assumed "that 'the
presence of the interchange' would be a 'significant' and
'special benefit' to the Property." Id. at 220. Agreeing with
that reliance argument, the court concluded that "an abutting
property owner may acquire a compensable right of access to a
controlled-access highway when access is designated and used to
settle or mitigate damages in a condemnation, but that access is
later removed." Id. at 226.


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power left a property owner with only unreasonable access to his

or her property, the broad scope of reasonableness does not

preclude      a     finding         of         unreasonableness           in        specific

circumstances.

      ¶85    This summary of the case law is simply inconsistent

with the lead opinion.               Consequently, either this summary is

wrong or the lead opinion is making new law.                       I believe the lead

opinion is making new law.

                                              III

      ¶86    The lead opinion appears a bit uncomfortable with its

decision to abandon "reasonable" access.                       It tries to hide the

severity     of   its   ruling      by    offering      the    fig   leaf      of    inverse

condemnation.      This remedy is simply not adequate.

      ¶87    Generally,       a   property          owner    who   brings      an    inverse

condemnation       claim      under       Wis.       Stat.    § 32.10       can      recover

compensation by demonstrating that a restriction on use amounts

to a regulatory taking that "den[ies] the property owner all or

substantially all practical uses of a property."                          Brenner v. New

Richmond Reg'l Airport Comm'n, 2012 WI 98, ¶45, 343 Wis. 2d 320,

816 N.W.2d 291 (citing Eberle v. Dane Cnty. Bd. of Adjustment,

227   Wis.   2d   609,     622,     595    N.W.2d      730    (1999));      see      Just   v.

Marinette     Cnty.,     56   Wis.       2d    7,    15,     201   N.W.2d      761      (1972)

("Whether     a   taking      has     occurred        depends      upon     whether       'the

restriction       practically        or       substantially        renders        the     land

useless for all reasonable purposes.'" (quoting Buhler v. Racine

Cnty., 33 Wis. 2d 137, 143, 146 N.W.2d 403 (1966))).



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      ¶88   But    even    property           owners    burdened     by      plainly

unreasonable      access   will       struggle     to    demonstrate       that    the

remaining access renders the property substantially useless for

all   reasonable       purposes.          No      matter     how     outrageously

inconvenient a means of access might be, the property owner will

still retain some ability to access the property.                    Unreasonably

inconvenient access does not necessarily mean that a property is

substantially      useless.       A     use     based    standard    for     inverse

condemnation      is   fundamentally      incompatible       with    a     claim    of

unreasonable access because any access at all likely ensures

that the property owner retains the ability to use the property.

      ¶89   In my view, whether alternative access is reasonable

or unreasonable is a matter of degree, the determination of

which should be submitted to a jury.                    "[W]hether a change in

access is 'reasonable' . . . is a question for a jury."                           Nat'l

Auto Truckstops, 263 Wis. 2d 649, ¶21; Narloch, 115 Wis. 2d at

433-34; Bear v. Kenosha Cnty, 22 Wis. 2d 92, 96, 125 N.W.2d 375

(1963).

      ¶90   The right to trial by jury in these cases is embedded

in Wis. Stat. § 32.05, especially in subsection (10) paragraph

(a), subsection (11), and subsection (12).                 Trial by jury serves

as a vital check by an impartial fact finder on the exercise of

government power.

      ¶91   There is a great chasm between reasonable access and

access so deficient that it constitutes inverse condemnation.

The lead opinion permits government officials to push property
owners into that chasm without compensation.                  That is contrary

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to the spirit with which our statutes ought to be administered.

It is ominous when the check of trial by jury disappears, as

well.

    ¶92   For the reasons stated, I respectfully dissent.




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