Owner does not have a compensable "right to visibility" for inverse condemnation purposes.

Author:Blair, Benjamin A.
Position:Recent Court Decisions on Real Estate and Valuation - A dams Outdoor Advertising LP v. City of Madison

This case involves the question of whether the "right to visibility" of a billboard is an interest in real property that is protected from condemnation without just compensation. The billboard in question was built in approximately 1995, is located on a highway in Madison, Wisconsin, (City) and consists of a single-pole structure with two opposite-facing panels. In 2013, the City built a pedestrian and bicycle overpass crossing the highway. The bridge, which is located adjacent to, but not on, the property of the billboard's owner (Owner), obstructs the view of the west-facing side of the billboard from highway traffic.

Since construction of the bridge, Owner has not been able to sell advertising space on the west-facing panel, though the east-facing panel remains unobstructed and income-producing. Owner retained an appraiser who estimated that, before the construction of the bridge, the value of Owner's real property was $1,460,000; post-construction, the property's value declined to $720,000.

The Owner initiated an inverse condemnation action against the City, alleging that its constitutionally protected property rights were taken without compensation. In opposition, the City contended that there is no property right to continued visibility of the billboard, and that there was no physical occupation of Owner's property. The circuit court granted a summary judgment motion in favor of the City, finding that there is "no property right to be seen," and the court of appeals affirmed. Owner petitioned to the state supreme court.

The court first noted that, in order to maintain an unconstitutional takings claim, four factors must be demonstrated: (i) a property interest exists; (ii) the property interest has been taken; (iii) the taking was for public use; and (iv) the taking was without just compensation. Only the first two factors were at issue in this case.

Owner variously characterized the property interest at stake as either the preexisting right to the legal nonconforming use of its property or, more fundamentally, the right to visibility of private property from a public road. The court concluded that the essence of Owner's asserted property interest is based on a right to visibility.

The court...

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