Spiegelberg v. State

2006 WI 75, 717 N.W.2d 641, 291 Wis. 2d 601, 2006 Wisc. LEXIS 367

• Court: Wisconsin Supreme Court
• Decided: June 27, 2006
• Docket: 2004AP3384
• Status: Published

Opinions

PATIENCE DRAKE ROGGENSACK, J. .

¶ 1. This case comes to us on certification from the court of appeals. The certified question is whether, when a partial taking affects multiple contiguous tax parcels that have common ownership, the property is to be valued based on: (1) the fair market value of the combined acreage as a single property or (2) the sum of the fair market values of each individual tax parcel. We conclude that Wis. Stat. § 32.09(6) (2003-04),¹ which determines the method by which just compensation is to be determined for a partial taking, permits a flexible approach such that the individual characteristics of each property may be considered, according to each property's highest and best use, in order that the property owner receives just compensation for the taking. Because valuing the tax parcels separately produced a value consistent with the most advantageous use of this property, the circuit court correctly chose the method of appraisal employed by Bernice Spiegelberg's appraiser. Therefore, we affirm the judgment and order of the circuit court that awarded $84,200 to the property owner.

I. BACKGROUND²

¶ 2. Bernice Spiegelberg owns five contiguous tax parcels, consisting of approximately 150 acres of land. The Department of Transportation (DOT) condemned a portion of Spiegelberg's land. The taking consisted of a fee acquisition totaling 11.08 acres from three of the five parcels. With the exception of her residence, Spiegelberg leased all five tax parcels together for use as a farm.

¶ 3. The DOT determined the value of the partial taking by valuing the farm as a single entity, before and after the taking, and then subtracting the "after" value from the "before" value. The DOT's appraisal valued all the farm as a single entity worth $368,300 before the taking and $349,400 after the taking. Based on those calculations, its appraiser set the fair market value of the taking of Spiegelberg's property at $18,900.

¶ 4. Spiegelberg, on the other hand, obtained an appraisal for the partial taking based on the sum of the values of the five individual tax parcels both before and after the taking. Using a comparable sales method of valuation, Spiegelberg's appraiser arrived at the following "before" fair market values: (a) Parcel 1: $152,700; (b) Parcel 2: $113,400; (c) Parcel 3: $89,000; (d) Parcels 4 and 5: $114,000; (e) improvements: $63,500. The sum of the fair market values of the parcels and improvements "before" was $532,700, and the sum of their fair market values "after" was $448,500. The appraised fair market value for all of the land taken was $84,200.

¶ 5. Before the circuit court, each party submitted jury instructions and special verdict forms consistent with its theory of valuation for the property that was taken. In August of 2004, the DOT brought a motion in limine seeking to exclude Spiegelberg's appraisal. The circuit court denied the DOT's motion. It also held that Spiegelberg's jury instructions and special verdict would be used at trial. Counsel then discussed how to proceed from those determinations with regard to proof of valuation. The parties entered into an oral stipulation on the record wherein they agreed that since the court had concluded that Spiegelberg's theory of valuation was correct, the DOT had no evidence to present of the fair market value of the property that was taken. The parties concluded that if the circuit court was correct, the value set by Spiegelberg's appraisal correctly established the value of the taking.

¶ 6. In November, a signed stipulation was submitted by both parties. In addition to the facts already related, it included the following recitation: (1) prior to the taking, the five tax parcels either had direct access to existing roads or could have been provided access through the property owned by Spiegelberg; (2) the taking caused damage to only three of the five tax parcels; (3) David Gagnow completed an appraisal for the DOT, which valued all five tax parcels, both before and after the taking, as one parcel; (4) Kurt Kielisch completed an appraisal for Spiegelberg based on the fair market value of each individual parcel, both before and after the taking and then calculated the sum of those values; (5) the circuit court's ruling resulted in the DOT not having evidence to present on the value of the taking; (6) based on the court's ruling "the damages in this case under the analysis before and after the taking [is] $84,200[,] consistent with the analysis presented by [Spiegelberg]"; (7) if upon appeal it is determined that the circuit court erred: (a) the damages under the before and after analysis will be "blank based" upon the appraisal submitted by the DOT; and (b) the case "will be remanded to [the] circuit court for a trial on the value of the part taken as a separate entity."³

¶ 7. The DOT appealed, and the court of appeals certified the question of what method of valuation should be used to accord just compensation to a con-demnee whose affected property consists of contiguous individual tax parcels.

II. DISCUSSION

A. Standard of Review

¶ 8. We interpret a statute whose meaning is in dispute without deference to the circuit court. State v. Rasmussen, 195 Wis. 2d 109, 113, 536 N.W.2d 106 (Ct. App. 1995); Racine Marina Assocs., Inc. v. City of Racine, 175 Wis. 2d 614, 618, 499 N.W.2d 715 (Ct. App. 1993). This case also requires us to review the circuit court's application of a statute to stipulated facts. When the facts are not disputed, we decide the remaining question of law independent of earlier court decisions. State v. Trentadue, 180 Wis. 2d 670, 673, 510 N.W.2d (Ct. App. 1993). However, we benefit from the analysis of the previous court's decision. State v. Cole, 2003 WI 59, ¶ 12, 262 Wis. 2d 167, 663 N.W.2d 700.

B. Just Compensation.

¶ 9. When property is taken through the power of eminent domain, the legislature has directed that the property owner is to receive "just compensation" for the taking. Wis. Stat. § 32.09. Here, only a portion of Spiegelberg's property was taken so we begin by examining § 32.09(6), the partial taking subsection of § 32.09. Section 32.09(6) states, in relevant part:

In the case of a partial taking of property other than an easement, the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist:

(a) Loss of land including improvements and fixtures actually taken.

(e) Damages resulting from actual severance of land....

¶ 10. The issue before us, and the issue the parties' arguments center on, is how to interpret the statutory term, "fair market value of the whole property" found in Wis. Stat. § 32.09(6). Both parties' valuation methods subtracted the appraised fair market value of what remained after the taking from an appraised fair market value of the property before the taking. Further, the specific calculations used in each of the party's valuations are not in dispute. The debate lies in whether it is appropriate to appraise the "before" and "after" values with regard to the five individual tax parcels and then sum those differences as a part of the valuation of the taking, or whether all of the contiguous Spiegelberg property should be appraised as a single unit, both before and after the taking. The answer to this question turns on whether the "whole property" language of § 32.09(6) requires that contiguous parcels be valued together as a single unit, or whether they can be valued individually with a sum total then calculated for their collective appraised values.

1. The DOT's position

¶ 11. The DOT submits that the appraisal method chosen by the circuit court, which analyzed the summation of the values of various parcels of property, does not meet the requirements of Wis. Stat. § 36.09(6). The DOT argues that the whole of Spiegelberg's property functioned as a single economic entity, a farm comprising 150 acres of land, and consequently the property must be valued as a single entity to properly determine the "fair market value of the whole property."

¶ 12. The DOT contends that the "unit rule" requires that we adopt a single-unit valuation approach to contiguous, commonly-owned tax parcels, as its appraisal has done. It cites Jonas v. State, 19 Wis. 2d 638, 121 N.W.2d 235 (1963), in support of this contention. However, our decision in Jonas actually turned on the "unity of use," a very different principle from the "unit rule."

¶ 13. In Jonas, a seven-acre parcel owned by one corporation and located on the east side of a street was condemned. Id. at 640. A second corporation owned a parcel of one and one-half acres on the west of that same street. Id. The corporations operated as one concern. Id. Jonas contended that there was a unity of use between the two parcels and that in order to fully compensate for the damages arising from the condemnation, both parcels had to be valued. Id. We concluded that it was possible that when "two or more distinct parcels ... are used as a unit, the parcels may be treated as one and the taking of part or all of one of them treated as a partial taking of the combined whole." Id. at 642.

¶ 14. The possible application of the unity of use rule in condemnation cases does not support the DOT's assertion that Spiegelberg's entire farm must be valued as a single parcel because all of it has been used as a farm. The unity of use rule permits a condemnee to receive compensation when a taking from one property must be considered in terms of its effect on another property, in order for those affected by the taking to be fully compensated. See City of Milwaukee v. Roadster LLC, 2003 WI App 131, ¶ 18, 265 Wis. 2d 518, 666 N.W.2d 524 (concluding that a parking lot that was condemned was "occupied" by its owner who used it for access to a business on an adjacent lot; and therefore, the city "took" an essential portion of the business when it took the parking lot). The unity of use rule does not require that property that currently has a single use be valued only for that single use.

¶ 15. Other cases cited by the DOT do refer to the "unit rule," which differs from the unity of use rule. Unit rule cases address the separate interests that may be found in a condemned property. For example, a property may have a fee owner and one or more leaseholders. Those properties that are subject to multiple interests are given one value for the entirety of the condemned property and then that value is apportioned among those who have an interest in the property. See, e.g., Van Asten v. DOT, 214 Wis. 2d 135, 140, 571 N.W.2d 420 (Ct. App. 1997) (concluding that "the unit rule . . . stems from the common law theory that anything that was attached to a freehold was annexed to and considered to be a part of it. ... The unit rule requires that improved real estate be valued in respect to its gross value as a single entity as if there was only one owner."). This is a far cry from the DOT'S position, which is if one person owns multiple parcels that are affected by a partial taking, all of the parcels must be valued as though they were one parcel.⁴ There is only one interest in the property for which Spiegelberg seeks compensation, her fee simple interest.

2. Spiegelberg's position

¶ 16. Spiegelberg argues that the "whole property" may be the smallest distinct parcel of land that can be independently sold; and therefore, her assessment method comports with the statutory language. Furthermore, Spiegelberg cites Wisconsin case law holding that statutes concerning just compensation for property taken in an eminent domain proceeding must be liberally construed in favor of the condemnee. See Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 743, 349 N.W.2d 661 (1984). Spiegelberg emphasizes that the DOT's presumption that the legal distinction of parcels should be ignored in favor of a rule that would treat contiguous parcels as one parcel is contrary to our holding in Standard Theatres. She contends that there is no reason not to value separate tax parcels separately; they have separate legal descriptions; they can he developed distinctly according to their zoning; and they can be bought and sold freely, without further subdivision or attachment to other land. Finally, Spiegelberg argues that we should recognize this "reality" of real estate, but contends that at a minimum, separate legal tax parcels should be valued separately if it is beneficial to the property owner to do so. This, Spiegelberg asserts, is in accord with our decision in Standard Theatres, as well as the legislative directive of Wis. Stat. § 32.09(6).

3. Wisconsin Stat. § 32.09(6)

¶ 17. In order to address the parties' arguments, we must interpret and apply the phrase, "fair market value of the whole property" found in Wis. Stat. § 32.09(6). When we interpret a statute, we rely on the criteria set out in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. In Kalal, we explained that:

[ T]he purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect.

Id., ¶ 44. Context is also important when determining the plain meaning of a statute, as is the purpose of the statute and its scope, if those qualities can be ascertained from the language of the statute itself. Id., ¶¶ 46-48. These are all intrinsic sources for statutory interpretation. Id. However, if statutory language is ambiguous, we often consult extrinsic sources such as legislative history. Id. at ¶ 48.

¶ 18. The disagreement between the parties in their interpretations of the phrase, "fair market value of the whole property," centers on the words, "whole property." Those two words can be understood by reasonably well-informed individuals in two or more senses. For example, in some circumstances those words could be interpreted as the DOT suggests as requiring all the property affected by the taking to be valued as one unit. Or, "whole property" could be interpreted as the cumulative value that is derived by taking the sum of the individual effects of the taking on each parcel, as Spiegelberg suggests. Accordingly, we conclude that the statute is ambiguous. Id., ¶ 47.⁵

¶ 19. The word "whole" is not defined in the statute. Non-technical words that are not defined in a statute are to be given their ordinary meanings. Town of LaFayette v. City of Chippewa Falls, 70 Wis. 2d 610, 619, 235 N.W.2d 435 (1975). We may consult a dictionary to aid in statutory construction of undefined words. Id. We do so for "whole." A dictionary defines "whole" as: "a complete amount or sum : a number, aggregate, or totality lacking no part, member, or element." Webster's New Collegiate Dictionary, 1338 (1977). This definition suggests that the use of the word "whole" when taken in the context of Wis. Stat. § 32.09(6) means that no part of a property is to be left out in determining the property's fair market value. Stated otherwise, an appraisal that complies with the statute must address the complete property, in its totality. Accordingly, the word "whole" does not require that a valuation of contiguous tax parcels employ a particular method of appraisal, hut rather that no part of a property affected by a partial taking be omitted from the valuation used to establish just compensation.

¶ 20. Neither the dictionary definition nor our understanding of it establishes which definition of "whole property" is correct because both the DOT's and Spiegelberg's interpretations come within the definition. However, there are other contextual directives within Wis. Stat. § 32.09 and our interpretation of the compensation that is due to a condemnee that assist us in: (1) choosing the correct appraisal method for Spiegelberg's property and (2) comparing the Spiegel-berg appraisal and the DOT appraisal to those statutory directives.

¶ 21. First, to assist in our construction of the statutory language, "fair market value of the whole property," we consider "fair market value," which has a well-established meaning. In Pinczkowski v. Milwaukee County, 2005 WI 161, 286 Wis. 2d 339, 706 N.W.2d 642, we interpreted "fair market value" as:

Fair market value is "the amount for which the property could be sold in the market on a sale by an owner willing, but not compelled, to sell, and to a purchaser willing and able, but not obliged, to buy."

Id., ¶ 18 (citations omitted). We note that Wis. Stat. § 32.09(6) requires that just compensation will take into account the fair market value. Both appraisals said that they were based on this standard.

¶ 22. Second, we have consistently held that when compensating condemnees in eminent domain proceedings, the "highest and best use" of the property should be considered in the valuation. In Bembinster v. DOT, 57 Wis. 2d 277, 203 N.W.2d 897 (1973), we explained:

It is well established that market value in an eminent-domain proceeding is to be based not necessarily on the use to which the property was being put by its owner at the time of taking but rather on the basis of the highest and best use, present or prospective, for which it is adapted and to which it might in reason be applied.

Id. at 283 (citations omitted). The Spiegelberg appraisal (Kielisch Appraisal) was based on the highest and best use that included residential development, as is described more fully below. Kielisch Appraisal, p. 17. The DOT appraisal (Gagnow Appraisal) limited its inquiry of the property's highest and best use to farming. Gagnow Appraisal, pp. 11-12.

¶ 23. Third, Wis. Stat. § 32.09(6) provides two valuation choices: (1) "the fair market value of the property taken" or (2) "the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation." We are required by § 32.09(6) to employ that valuation choice that will provide the "greater" compensation to the property owner. Although both the DOT appraisal and the Spiegelberg appraisal use the before and after method, the Spiegel-berg appraiser also used a before and after method that best fit the unique characteristics of the land. Therefore, although the appraisal with the higher value may not always come within the statutory directive, here it fits the spirit, as well as the letter, of § 32.09(6) and it results in greater compensation to the property owner.

¶ 24. Fourth, the requirement of Wis. Stat. § 32.09(2) that the "most advantageous use" be considered and the concept of "highest and best use" also are helpful to our deciding whether the circuit court correctly selected the Spiegelberg appraisal. In Clarmar Realty Co. v. Redevelopment Authority of Milwaukee, 129 Wis. 2d. 81, 383 N.W.2d 890 (1986), we explained:

[Section] 32.09, Stats., governs the determination of "just compensation" in eminent domain proceedings in this state. It requires that ”[i]n determining just compensation the property sought to be condemned shall be considered on the basis of its most advantageous use but only such use as actually affects the present market value." ... The term "most advantageous" use as it appears in this section is synonymous with "highest and best" use....

Id. at 90 (emphasis added).

¶ 25. In Clarmar, we also set out three conditions for the valuation of prospective uses:

[ 0]ur standards have permitted admission of evidence of prospective land uses in condemnation cases under three conditions: (1) if the prospective use is the "most advantageous" use of a condemned parcel; (2) if the prospective use is "reasonably probable"; and (3) if the prospective use is not imaginary or speculative.

Id. at 91-92 (citing Carazalla v. State, 269 Wis. 593, , 70 N.W. 208 (1955)). When considering the "highest and best use," we note that it accounts for the effect of such proposed use on the present market value of the property.⁶ Therefore, even if an owner chooses not to engage in the most profitable use, such use may nevertheless make the property more valuable to the owner in the event of a sale. This value, based on "highest and best use," is what is to be valued in condemnation. For example, in Utech v. City of Milwaukee, 9 Wis. 2d 352, 101 N.W.2d 57 (1960), we held that the owner's choice of present use was not conclusive in determining the "most advantageous use" because the present use may be unrelated to the value of the real estate. Id. at 357.

¶ 26. Here, the Spiegelberg appraisal considered the property's use for residential large lot development, as well as its current use as a farm. Kielisch Appraisal, p. 18. The consideration of residential development and recreational use was reasonable as each parcel was readily saleable and the zoning permitted those uses. Therefore the proposed uses were not speculative.

¶ 27. Fifth, Wis. Stat. § 32.09(2), and our past interpretations of its requirements, assist in our analysis. As we mentioned above, § 32.09(2) directs that when determining just compensation, a court should consider the "most advantageous use but only such use as actually affects the present market value." The Spiegelberg appraisal followed this directive. It examined:

the highest and best use of the subject property, including an analysis of its present and future utility. [And] [t]he specific location, extent and utility of the land and its Market Value in the real estate market considered as if vacant and available for use.

Kielisch Appraisal, p. 7. Even though all of the property, with the exception of the improvements, had been leased for farming, the Kielisch Appraisal examined the potential use of the parcels, before the taking, as "residential large lot development land for parcels 1-3 and as a recreational land use with a potential of having some residential improvements for parcels 4 and 5." Kielisch Appraisal, p. 18. After the taking, that potential was diminished, not just because of the acres taken, but also because of other factors. Kielisch Appraisal, p. 19-22. For example, the acres taken from parcel 3 left it "with a fraction of the lands not affected by the Shore-land or the Wetland overlay district zoning," thereby reducing the potential to build upon it. Kielisch Appraisal, p. 19.

¶ 28. The approach used in the Kielisch Appraisal is also consistent with our interpretation in Van De Hey v. Calumet County, 40 Wis. 2d 390, 161 N.W.2d 923 (1968), of how to determine "the most advantageous use" set out in Wis. Stat. § 32.09(2). Van De Hey involved a partial taking under subsec. (6), wherein 5.53 acres were taken from a 186-acre farm. Id. at 392. The strip of land taken also had three driveways for public highway access, which the condemnation limited to one public highway access after the taking. Id.

¶ 29. During the course of the trial, the expert for Van De Hey testified about the before and after values of the farm, and in doing so, he took into account the sales of several parcels of land from one-half to five acres as residential lots in the vicinity of the Van De Hey property. Id. at 394. Objection was made that this was improper because "the value of a total piece of property could not be determined by taking the cumulative value of the lots into which the parcel could be divided." Id. We disagreed, and held that the valuation method was proper because Van De Hey's expert was able to establish "the potential residential use of that part of the farm which could be put to such residential use if the access had not been restricted." Id. In addition, this testimony was held appropriate under Wis. Stat. § 32.09(2). As we explained:

The measure of compensation for a partial taking as set forth in sec. 32.09(6)(b), Stats., contemplates the damage to the property from the deprivation or restriction of access to the highway from abutting land, and sec. 32.09(2), Stats., provides the most advantageous use of the property which actually affects the present market value shall be used in determining just compensation. A foundation for this testimony was made by the evidence of the adaptability of the land to subdividing.

Id. at 395. The Spiegelberg appraisal is consistent with Van De Hey; the DOT appraisal is not.

¶ 30. We derive the following conclusions from our statutory analysis of the terms chosen by the legislature: (1) "fair market value" relates to the price a willing buyer would pay to a willing seller; (2) the requirement to consider the "whole property" does not require that an individual assessment always treat contiguous, commonly owned tax parcels separately or as a single unit, but requires that no portion of the property be left out of an assessment; (3) the requirement of Wis. Stat. § 32.09(2) that a property's "most advantageous use but only such use as actually affects the present market value" be considered as a part of a valuation is linked to the determination of the "fair market value" required by § 32.09(6); and (4) how to apply the language of § 32.09(6) to arrive at just compensation depends upon considerations related to each property's individual characteristics.

¶ 31. Because Wis. Stat. § 32.09(6) does not specify whether contiguous, commonly-owned tax parcels should be separately appraised or appraised as a collective unit, we conclude that when the property's "highest and best" use that affects its present market value is most appropriately appraised by considering the contiguous tax parcels separately, that is the appropriate appraisal method. Conversely, when, according to the above-addressed rules, the "highest and best use" is more adequately represented through an appraisal of the property as a single unit, that approach is the one that is appropriate. Which method is required by § 32.09(6) will depend on the unique qualities of the specific property affected by the taking and its "fair market value." The ascertainment of the property's "fair market value" depends upon the common law definition of "highest and best use," which we have determined is synonymous with the "most advantageous use" set out in § 32.09(2). And finally, just compensation is to take into account the principle of Standard Theatres:

[ W]e note that this court has recognized that the rule of strict construction should be applied to the condemnor's power and to the exercise of this power. This is because the exercise of the power of eminent domain has been characterized as an "extraordinary power," and the rule of strict construction is intended to benefit the owner whose property is taken against his or her will. Conversely, statutory provisions in favor of the owner, such as those which regulate the compensation to be paid to him or her, are to be afforded liberal construction.

Standard Theatres, 118 Wis. 2d at 742-43 (citations omitted; emphasis added).

¶ 32. In summary, it is undisputed that at the time of condemnation each of the tax parcels could have been sold as a separate individual property. Therefore, such sales were a readily available prospective use, in conformity with Van De Hey and Carazalla. Sale of the property as separate tax parcels would have been more advantageous, or the highest and best use, as compared with the sale of the property as a single unit. It also would have garnered a greater payment for Spiegelberg. That she had not yet used the land as separate tax parcels or for a venture other than farming is not dispositive, as we explained in Utech. It is undisputed that the before-and-after appraisal that separately considered each of the individual tax parcels favored Spiegelberg, in conformity with Standard Theatres. According to these factors, the circuit court correctly determined that the Spiegelberg appraisal complied with Wis. Stat. § 32.09(6) and the DOT appraisal did not.⁷

III. CONCLUSION

¶ 33. We conclude that Wis. Stat. § 32.09(6), which determines the method by which just compensation is to be determined for a partial taking, permits a flexible approach such that the individual characteristics of each property may be considered, according to each property's highest and best use, in order that the property owner receives just compensation for the taking. Because valuing the tax parcels separately produced a value consistent with the most advantageous use of this property, the circuit court correctly chose the method of appraisal employed by Bernice Spiegelberg's appraiser. Therefore, we affirm the decision of the circuit court that awarded $84,200 to the property owner.⁸

By the Court. — The judgment and order of the circuit court is affirmed.

1 All further references to the Wisconsin Statutes are to the 2003-04 version unless otherwise noted.

2 The facts are taken from the stipulation of the parties.

3 The Kielisch Appraisal included a "part taken analysis" whereby the value of the taken land was also analyzed separately. That analysis resulted in a valuation for the taking of $62,200. Because this statutory choice of appraisal method under Wis. Stat. § 32.09(6) is less than the other statutory choice, a "before and after" valuation, it was not chosen.

4 The unit rule is also discussed in Green Bay Broadcasting Co. v. Redevelopment Authority of Green Bay, 116 Wis. 2d 1, 11, 342 N.W.2d 27 (1983) (explaining that "[t]he unit rule is designed to protect the interests of the condemnor.... The condemnees.. . are indeed constitutionally entitled to just compensation, but contracts between the owners of different interests in the land should not be permitted to result in a total sum which is in excess of the whole value of the undivided fee.").

5 Even though we may use legislative history as an assist in interpreting an ambiguous statute, State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 48, 271 Wis. 2d 633, 681 N.W.2d 110, it does not assist us here because the legislature provided no history for its insertion of "fair market" and "whole" in the 1961 amendments to Wis. Stat. § 32.09(6).

6 Wisconsin Stat. § 32.09(2), which requires consideration of the most advantageous use that is synonymous with highest and best use, provides:

In determining just compensation the property sought to he condemned shall be considered on the basis of its most advantageous use but only such use as actually affects the present market value.

7 We appreciate the dissenting opinion's concern with the status of the relatively undeveloped record. Dissent, ¶¶ 42-67. For example, the dissent is concerned with the lack of a "platted subdivision of the property or a certified survey." Id. at ¶ 60. However, this concern is misplaced. The dispute in this case was not about whether Spiegelberg could create a subdivision with her property. But rather, whether valuing the five separate parcels individually or valuing them as a unit satisfied the valuation direction of Wis. Stat. § 32.09(6) that "the fair market value of the whole property" be considered. The State said the statute required valuing the five parcels as one unit and Spiegelberg said valuing each separate tax parcel and then summing those values satisfied the statute. We agreed with Spiegelberg.

8 Spiegelberg has moved to strike the portion of the State's reply brief that raises Spiegelberg's alleged failure to comply with Wis. Stat. § 32.05(5) because this issue was not raised prior to the filing of the State's reply brief. We held Spiegelberg's motion in abeyance and addressed the § 32.05(5) issue at oral argument with both Spiegelberg and the State. We do not rely on § 32.05(5) in our opinion. Accordingly, we deny Spiegelberg's motion to strike.