When to Purchase Access Rights versus When to Exercise our Police Power in Lieu of Purchasing. Mike Roach WisDOT Access Management Engineer May 15, /15/20131

No Statutory Access Controls governs – The provisions of sec (2), Stats., prohibit any person from making any alteration in a state highway or disturbing any highway without a permit from the highway authority maintaining the highway.sec (2), Stats – This section is considered to require a permit to put in a driveway for access from private property abutting the highway. – The location, design and construction of driveways is controlled by WisDOT for state trunk highways.

No Statutory Access Controls governs – TRANS 231 of the Wisconsin Administrative Code provides the number of driveways permitted serving a single property frontage along a state highway shall be the minimum deemed necessary by the engineer for reasonable service to the property without undue impairment of convenience and utility of the highway. – This section does not deny the right to access but regulates access in the interests of public safety and convenience.

The Right of Access “ The right of access or of ingress or egress of an abutting property owner to a public road or street is a property right not separate in itself but incidental to and a part of the ownership of the land and is subject to the superior rights of the traveling public upon the highway and of the state to control the traffic for the common good.” Stefan Auto Body v. State Highway Comm., 21 Wis. 2d 363, 370, 124 N. W. 2d 319 (1963).

The Right of Access [T] he 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 & Loan Assn. v. State, 54 Wis. 2d 438, 444, 195 N.W.2d 464 (1972).

The Right of Access The right of access is: – the right of reasonable access – which is reasonably convenient and suitable access in at least one direction – defined to mean reasonable ingress and egress “from his [or her] premises by way of the street” – does not extend to all points in the boundary between the abutting property and the street.

When you buy access Where DOT seeks to acquire all “existing and future” access rights in conjunction with a partial taking, the appraisal statute, sec (6)(b), Stats., requires the impact on the property to be appraised, and compensation to be paid, where loss or damage is “shown to exist.” Generally, sec (6), Stats.,

Statute More easily subject to political pressure to reverse good engineering decisions than when access is acquired through Deprivation of direct access to a highway does not constitute a taking of property provided reasonable access remains. Nat’l Auto Truckstops, Inc. v. DOT, 2003 WI 95 (Wis. 2003) “Handling Right of Way Problems” by Jim Thiel April 2006, Page 18.

Limit Use of for Access “Acquisition of access rights is a waste of money if the access is already controlled by other means. Existing access rights, if any, of abutting owners must be acquired or frontage roads provided for interstates, freeways, and expressways designated on existing locations.” Access Control for Litigation Users Group presentation by Jim Thiel September 1995.

Reasonableness = Jury Decision If a condemnor is acquiring access by deed then the reasonableness of access issue remaining would HAVE to be a question for the jury. Narloch and Spitzer cases

No Appeal When Access Acquired Existing and future access rights, if any, of abutting owners may also be acquired by purchase or condemnation as stated in the deed. In brief, when the access rights are expressly acquired by deed, it means that the governmental entity owns an interest in property and a permit for access or denial of a driveway permit is not subject to appeal under normal driveway permit statutes or ordinances such as Wis. Stat , nor is it subject to any appeal under Chapter 236, Wis. Stats., or Trans 233, Wis. Admin. Code. The reason is that release, disposal or transfer of a public property interest must be approved after appraisal and sale. Jim Thiel, NBI Road and Access Law presentation December 2007

No Touch, No Take A plaintiff is limited to a claim for just compensation for a taking of private property for a public purpose under the U.S. and Wisconsin Constitutions and Wis. Stat No compensation is permitted without an actual taking.

Alternative Access There is no unabridged or absolute private right of direct access from a private parcel to a State Trunk Highway. There is no inherent right of access exactly where and how a private property owner wants it. Consider whether the property as a whole has access to other highways. Jim Thiel, NBI Road and Access Law presentation December 2007

No Right to Direct Access The owner does not have a right to direct access to a State Trunk Highway at a location that is detrimental to the public interest. R.W. Docks & Slips v. State, 244 Wis. 2d 497, Paragraphs 29 to 32 (2001)

Police Powers It is generally recognized the state under its police powers may indirectly affect the abutting property by such controls as the establishment of: – One-way streets – Median strips – construction or removal – Restrictions on U-turns, left and right turns McKenna v. State Highway Commission, 28 Wis 2d , 135 N.W.2d 827 (1965)

Things to Consider Look for existing controls on a highway: – – Controlled Access Highway – – Designated Freeway or Expressway Consider Official Mapping on side roads – Trans 233/Chapter 236 – Subdivisions – Access Covenants – issued with driveway permits or land divisions

Things to Consider (cont’d) – Existing driveway permits may have restrictions – Existing deed restrictions/Certified Survey Maps May include access restrictions – Local ordinances involving access Spacing, corner clearance, local type ordinances – Development agreements may include access restrictions

Abutting Access Do abutting owners have a right to access to all abutting public highways? No. – The right attributed to an abutting landowner is the right of reasonable access. Geyso v. Daly, 2005 WI App 18, 278 Wis 2d 475