The city of Madison did not illegally take property from a billboard company by building a Beltline bridge for a bicycle path that blocked the view of a billboard, the state Supreme Court said in a decision Tuesday.
In a 4-3 decision, the court agreed with a Dane County circuit judge and the 4th District Court of Appeals that Adams Outdoor Advertising had failed to show that the city of Madison took property from Adams in 2013 that requires compensation when the city built the bridge for the Cannonball bike path over the Beltline, just east of a Culver’s restaurant.
Adams claims that the bridge blocks the west-facing side of the billboard. It said the company is due compensation because it was deprived of “all economically beneficial use” of the west-facing side of its billboard. But the court said the right to visibility of private property from a public road “is not a cognizable right giving rise to a protected property interest,” so Adams’ claim fails.
Adams has also sued the city of Fitchburg over a similar situation, in which a bike path bridge built over Highway PD just east of Highway 18-151 blocks the view of one panel of one of Adams’ billboards. That case, still before a circuit court judge, was awaiting a decision by the Supreme Court in the Madison case.
Adams has been in the courts fighting local governments several times in recent years. Recently, the state Supreme Court declined to take Adams’ appeal of its lawsuit against Dane County, which allowed lapses in leases of county property where several Adams billboards stand. Adams also has filed lawsuits in state and federal court that similarly claim Madison’s sign ordinance violates its constitutional rights.
Justice Ann Walsh Bradley wrote the decision for the state Supreme Court. Justice Rebecca Bradley wrote a dissent, joined by Chief Justice Patience Roggensack and Justice Daniel Kelly.
The city characterized the right that Adams was asserting as a “right to be seen.” Adams disagreed with that, but Walsh Bradley noted that the right to be viewed was exactly the argument Adams made before Dane County Circuit Judge Richard Niess. Instead, before the Supreme Court, Adams argued that it had a right to a continue a pre-existing use of its property, to display advertising that can be seen.
“It is undisputed that the city neither physically altered Adams’ property in any way, nor did it enact any regulation restricting the use of Adams’ property,” Walsh Bradley wrote. “Thus, we determine that the essence of Adams’ asserted property interest is based on a right to visibility. But for the reduction in the visibility of Adams’ billboard from a public road, there would be no asserted takings claim.”
She wrote that numerous courts have failed to find that a right to visibility exists. Citing other court decisions, she wrote that property owners are on notice that changes to roads, buildings and other structures may alter or obstruct the view of their private property from a public road, and it isn’t reasonable for a property owner to rely on the fact that it is located near a public road in a certain condition at a particular moment in time. Madison city attorney Michael May said the city is “very happy” with the decision.
“The majority determined not to reverse 80 years of Wisconsin law that says you have no right to a view,” May said. But he said the dissent written by Justice Rebecca Bradley is confusing because it incorrectly assumes that the city issued two permits for the billboard — one for each face — but the city issued only one permit.
In her dissent, Bradley wrote the majority’s decision was in error because the city deprived Adams the full benefit of its property and the use of its city permit by building a bridge that “obliterated the permit’s value.” She said she would send the case back to the circuit court to determine the proper compensation that Adams is owed for obscuring the west-facing side of the billboard.
Lawyers for Adams did not immediately respond to a request for comment.