By Emily Zantow/Courthouse News
MADISON, Wis. (CN) – The Wisconsin Supreme Court heard arguments Wednesday in a case centered on whether a city’s placement of a bridge that blocks the view of a billboard amounts to an illegal taking of property.
Adams Outdoor Advertising LLC filed a federal lawsuit against Wisconsin’s capital city of Madison in 2014, seeking $740,000 in damages after the city built a bicycle and pedestrian bridge across a highway that blocks the view of the west-facing side of its two-sided billboard.
The grandfathered billboard was constructed in 1995 on an irregularly shaped parcel, and the Minnesota-based advertising company bought the property, including the billboard, in 2007. Despite zoning regulation changes over time, the billboard is categorized as a legal non-conforming use, which means the company cannot change the billboard’s height or location.
Adams argues the city’s bridge obstruction is an unconstitutional taking of property that calls for compensation as an inverse condemnation under state law. The advertiser also claims the city allowed a nearby Culver’s fast-food restaurant to move its sign but prohibited Adams from making any changes to its billboard, in violation of the company’s equal-protection rights.
Lastly, the company alleges it was denied procedural due process and that the bridge is a private nuisance that must be abated.
The trial court disagreed and ruled in favor of Madison on all of Adams’ claims. The Wisconsin Court of Appeals affirmed, prompting the advertiser’s appeal to the state’s high court.
Wednesday’s oral arguments in the Wisconsin Supreme Court touched on whether Adams has a right for the billboard to be seen, whether the parcel is one piece of property or multiple, and whether all economic value of the property has been lost due to the bridge’s obstruction of the billboard.
“The issue that has been presented in this case is whether Adams has a right to continue a pre-existing use of its property, the sole purpose of which is to display advertising and be seen,” Adams’ attorney Eric McLeod said. “It’s because the use is a legal non-conforming use – cannot be moved, cannot be raised – that prevents Adams from mitigating against the impact that has been caused by the bridge.”
McLeod continued, “The question ultimately is whether or not we’re able to maintain and use that west-facing sign in light of the construction of the bridge. The city hasn’t dispossessed us of our [property] license – in fact, the city treats both sign faces as separate economic units by virtue of the fact that they have licensed both sign faces separately, which is a critical piece of the analysis.”
Evan Tenebruso, counsel for the city of Madison, called McLeod’s argument a “critical error” in his rebuttal.
“That is not in the record and I don’t believe that is true. There has been some discussion in the amicus brief from [an] association regarding some law that the association says would allow the city to do that, but there is nothing in the record to indicate the city has actually treated the billboard that way and I don’t believe that the city has,” he said. “Adams has a single parcel and Adams wants to split it up solely to manipulate the takings analysis.”
Tenebruso also argued that the east-facing sign of the panel remains fully visible and therefore the advertiser failed to show a constitutional taking, as part of the property still retains value.
McLeod argued just the opposite.
“A legal non-conforming use is a pre-existing use, which is a vested property interest, is protectable under the takings law from government action which destroys all or substantially all beneficial use of that property,” he said. “In the case of a billboard, the destruction of the use is the destruction of the view.”
Wednesday’s arguments lasted about an hour. It is unclear when the Wisconsin Supreme Court will issue a decision in the case.
Adams has offices in Madison and Kenosha, Wisconsin, and says it owns more than 100 billboard structures in Madison that provide commercial and emergency information to the traveling public.
The advertisements are used to communicate information like Amber Alerts, photos of wanted fugitives and police contact information, emergency messages like weather alerts, notices of community events and public interest information such as election results and messages from nonprofits.
In addition to Adams’ 2014 lawsuit, the company also sued Madison last summer, claiming an ordinance regulating billboard signs in Wisconsin’s capital city is an unlawful ban on constitutionally protected speech. Madison allegedly denied Adams’ 26 permit applications to make various changes to its signs, citing sections of the ordinance as the basis for the denial.