Court: State must pay property owner despite map mistake

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Mistakes on a map do not give the state free rein to take private property without compensating the owner, a state court of appeals has ruled.

Court of Appeals judges Paul Reilly, Richard Brown and Lisa Neubauer ruled Wednesday that even though certain parts of a private property were erroneously represented on a certified survey map as being set aside for public use, the Wisconsin Department of Transportation still must compensate owners Somers USA LLC, Kenosha, for taking the land for a highway project.

According to the court’s opinion, attributed to Reilly, “a governmental body cannot rely upon a known, material mistake as a basis upon which to take private property without paying just compensation.”

Benjamin Southwick, an attorney for Somers, said he had not yet seen the opinion but was pleased with the decision.

A Wisconsin Department of Justice spokeswoman said late Wednesday in an email that the opinion was being reviewed. Abigail Potts, assistant attorney general, is representing WisDOT in the case.

The case stems from roughly 46.6 acres that Somers bought in 2007 next to Interstate 94 in the town of Somers for the construction of a truck stop, according to court documents. At the time of the purchase, WisDOT was proposing a highway improvement project. The plans called for taking nearly 9.5 acres of the land for a frontage road and nearly 3 acres for an on-ramp.

Before the appeals court judges, Somers’ complaint hinged on whether WisDOT was obliged to provide compensation for land that had been mistakenly designated on a survey map as having been set aside for a public use. If the designation had been accurate, WisDOT likely could have taken the land represented without providing anything in return.

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But the initial draft of the map — prepared by Excel Engineering Inc., Fond du Lac — deemed parts of the land to be a future WisDOT right-of-way. It was only in a later version, submitted by Somers to the Kenosha County Register of Deeds in September 2008, that deemed the nearly 3-acre parcel “a road reservation for potential future state highway purposes” and the nearly 9.5-acre parcel as “Road Dedication for Future Highway Purposes (Right-of-Way Width Varies).”

A dedication conveys to a government the title to a parcel of land that is to bet aside for public use. A reservation restricts the use of the land, but does not involve a transfer of property.

WisDOT officials took the “reservation” and “dedication” language to mean they could build the frontage road and on-ramp on the two parcels without giving Somers anything in return. Somers later contended, though, that the words were put on the survey map by mistake and sued to obtain compensation.

The main flaw in WisDOT’s arguments, wrote Reilly, had less to do with whether the land was designated for certain uses, and more with if any dedication that did occur was done in accordance with Wisconsin law. According to Wis. Stat. 236.29(1m)(e), dedications must be approved by every governmental board that is to be involved in the development of the land being set aside for a particular purpose.

In the Somers case, the Kenosha County Land Use Committee, now known as the Kenosha County Planning & Development Committee, approved the survey map. But nothing in the documents presented to that body suggested that land would be dedicated for public use.

Moreover, all parties, according to court documents, agreed that Somers never intended to dedicate the land for the highway project and that none of the bodies of government involved asked for or required a dedication. Those involved with drafting or signing the map contended that they had no idea how the “dedication” language made it into the document.

WisDOT then went on to argue — “an absurd argument,” wrote Reilly — that it could still take Somers’ land without compensation because it had to rely on the certified survey map, which incorrectly designated the parcels as “dedicated.” State officials noted that Somers had provided the erroneous map.

But in order to support the claim against Somers, WisDOT had to show the company’s actions had caused officials to entertain certain expectations that caused harm to the state when they later went unfulfilled. That, according to the court, was where the state fell short.

“The State does not explain why its reliance on the CSM was reasonable when questions were raised about the validity of the dedication and all the evidence showed a lack of intent and a failure to comply with the statutory requirements necessary for a dedication,” wrote Reilly. “The State also does not develop an argument on appeal explaining what detriment it suffered due to its reliance on the CSM.”

WisDOT, according to the court, also did not explain why it took the nearly 3-acre parcel without compensating Somers, even though the map designated the land correctly as a “road reservation.”

The court of appeals’ decision affirmed a district court’s previous ruling in favor of Somers. The appeals court also affirmed a formal deal in which WisDOT agreed to pay Somers $500,000 plus attorney’s fees and interest.

WisDOT has 30 days to petition the state Supreme Court to hear the case. Follow @erikastrebel