Village of Brown Deer v. Balisterri (WI)

Summary: Village of Brown Deer street improvement did not amount to an unconstitutional taking, even though the majority, but not the entire, of the unrecorded street was 66 feet wide.  


Village of Brown Deer v. Balisterri, 2013 WI App 137, 351 Wis. 2d 665, 841 N.W.2d 59 review denied, 2014 WI 14, 843 N.W.2d 708.


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Facts: The Village of Brown Deer began implementing a street-improvement plan for part of the Village, without paying eminent-domain compensation. The Village asserted that it did not need to compensate property owners, because the projected improvements were on public highways within the purview of Wis. Stat. § 82.31(2)(a). Because the street was unrecorded, statute required it to be at least 66 feet wide in order for the Village to avoid providing compensation. The parties agreed that (1) the majority of the street was 66 feet wide and (2) had been worked as a public highway for 10 years or more.

The Village of Brown Deer residents argued the converse, contending that the improvement plan amounted to an unconstitutional taking for the three residents whose properties made the street less than the statutory 66 foot requirement. Additionally, the residents argued the Village had the burden of proof by a preponderance of the evidence. They also argued that the term “public highway” in § 82.31(2)(a) referred solely to vehicular use, and that the statute itself was unconstitutional

The trial court agreed with the Village, citing that Wis. Stat. § 82.31(2)(a) permitted the Village to utilize the property extending past the 66 foot threshold based on the additional factors, and the statute was constitutional. The village residents appealed.


Holding: Affirmed. On appeal, the court reviewed all of the residents’ arguments de novo, finding that the residents’ carried the burden of proof regarding the rebuttable presumption. The court then reviewed whether the sections of the street less than 66 feet affected the street as a whole. Agreeing with the trail court, the appellate court held that while the presumption did not apply to the three residents whose property was less than 66 feet, the rest of the street was at least 66 feet wide. Regardless, the residents failed to develop an argument that their property encroachments played a role in the street’s development, and did not show that the road was user-created (i.e. – created by a prior or existing resident for personal use) rather than governmentally constructed. Further, the residents could not refute that the Village had long used and maintained the full presumptive 66 foot width of the road, excepting where the structures encroached.

The court next addressed the residents’ argument concerning the definition of the term “highway” in § 82.31(2)(a). Citing similar statutory provisions under other Acts, the court held the term “highway,” “included all public ways and thoroughfares and all bridges upon the same,” including sidewalks, and did not limit the term to vehicular traffic. Therefore, combining their conclusions regarding the development/usage of the road and the definition of “highway,” the court held that the presumptive 66 foot width was not rebutted for the entire length of the street.

Regarding the constitutionality of § 82.31(2)(a), the court held that Wis. Stat. § 903.01 created a rebuttable presumption, and such presumptions were routinely used to advance public interests where conclusive presumptions would be unconstitutional. Therefore, because the residents did not develop an argument, they did not carry their burden and prove the statute was unconstitutional beyond a reasonable doubt.


Opinion Year: 
By: ATG Underwriting Department | Posted on: Tue, 09/23/2014 - 2:25pm