¶ 34. {dissenting). I agree with the majority's flexible approach in determining which is the correct method of valuation. It depends on the facts which address the individual characteristics and unique qualities of the property. I likewise substantially agree with the legal standards the majority sets forth. However, I do not join the majority's *624application of those standards here because it is impossible to meaningfully apply them on the inadequate record before us.
¶ 35. We cannot determine on this record what is the most advantageous use of Spiegelberg's property. Without more, we cannot decide whether it is reasonably probable that the separate parcels will be used for residential or recreational use.
¶ 36. The problem in this case arises because on the morning of the first day of the jury trial, before any evidence was admitted, the circuit court chose the exclusive method of valuation. The circuit court took no evidence, and it made no determinations with respect to the applicable legal standards set forth by the majority.
¶ 37. Further proceedings are necessary to determine whether the individual characteristics and unique qualities of the property should preclude either Spiegelberg's valuation method or the DOT'S. I would therefore reverse the circuit court and remand for those proceedings. Spiegelberg could then seek to show that the use she proposes is the most advantageous and is reasonably probable, and the circuit court could apply the standards articulated today by the majority. Accordingly, I respectfully dissent.
I — I
¶ 38. I substantially agree with the legal standards set forth by the majority. It correctly determines that just compensation in this case is pegged to "fair market value of the whole property" pursuant to Wis. Stat. § 32.09(6) (2003-04).1 Majority op., ¶ 21.
*625¶ 39. In addition, the majority correctly recognizes that the "most advantageous use" standard should apply:
In 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.
Section 32.09(2) (emphasis added); see also majority op., ¶ 24 & n.6.
¶ 40. The majority also correctly acknowledges that the case of Clarmar Realty Co. v. Redevelopment Authority, 129 Wis. 2d 81, 383 N.W.2d 890 (1985), provides the test for the types of potential uses that may he considered in determining what is the most advantageous use. See majority op., ¶¶ 24-25. Under Clarmar, the prospective use must be:
(1) the most advantageous use;
(2) reasonably probable; and
(3) not imaginary or speculative.
Id., ¶ 25 (citing Clarmar, 129 Wis. 2d at 91-92).
¶ 41. In addition, the majority correctly determines that the application of § 32.09(6) to arrive at just compensation depends upon the facts presented and each property's individual characteristics. See majority op., ¶ 30. Likewise, it correctly determines that whether contiguous, commonly-owned parcels should be valued as a unit or separately to arrive at just compensation will depend upon the unique qualities of the specific property affected by the taking. Id., ¶ 31.
*626¶ 42. Having set forth these standards, the majority nonetheless fails to meaningfully apply them. This is not surprising because the inadequate record before us makes that impossible.
¶ 43. In order to see how the majority went wrong, it is important to first understand precisely what did and did not occur in the circuit court proceedings.
¶ 44. The DOT filed a motion in limine seeking to prohibit Spiegelberg from introducing evidence or making arguments using a calculation of the property's value "based upon the existence of hypothetical subdivision of such property." Spiegelberg opposed the motion, asserting "there is nothing 'hypothetical' about the division of [the] property." The parties each submitted proposed jury instructions and special verdicts reflecting their respective theories of valuation.
¶ 45. On the first day scheduled for trial, the circuit court briefly heard argument from the parties with respect to the DOT's motion. With little explanation, the court tentatively denied the motion, stating that it would "give that a little more thought at this point."
¶ 46. The circuit court then conducted an in-chambers conference that was not recorded and that addressed the proposed jury instructions. When the court and parties were back on the record, the court recounted:
Okay. And we had an in-ehambers conference. . . and my ruling still would be that as far as the jury instructions would be consistent with my prior ruling as far as denying the motion in limine and going essentially with [counsel for Spiegelbergl's jury instruc*627tions as to the jury looking at separate tax parcels as far as the diminution of value for his clients individually. And I guess we are kind of contemplating here as to what's the next step, essentially whether it's an offer of proof from both sides and just how we want to proceed.
Spiegelberg's counsel explained that he and the DOT had agreed that under the court's ruling, only Spiegel-berg had relevant evidence to offer on the question of damages. Counsel continued:
[ T]here was basically going to be a stipulation by us and that we understand the Court's ruling and that if that ruling is affirmed so that if these are to be looked at as if it is appropriate to look at as separate tax parcels, then the plaintiffs' number would control... and if the court of appeals says no, they have to be treated as a whole all together, then it would be the [DOT]'s evidence.
¶ 47. At that point in the proceedings, the circuit court indicated its approval of the parties' stipulation and set forth its rationale for denying the DOT'S motion in limine:
Yes, that's an excellent concept there. Essentially, I just wanted to make part of the record I see no distinguishing traits of a certified survey map versus a separate tax parcel. That's part of my reason and rationale for that.2 So I guess we have a transcript here. 1 don't know if we need to make anything more as a matter of record other than to have a stipulation and order then.
(Emphasis added.)
¶ 48. The circuit court did not rule on the most advantageous use of the property. It did not inquire into *628whether residential development or recreational use of Spiegelberg's property as separate parcels was reasonably probable. It did not examine the individual characteristics or unique qualities of the property. The court took no evidence with respect to these legal standards that the majority sets forth. It did not make any findings of fact. Rather, its determination came down to one thing: It saw "no distinguishing traits of a certified survey map versus a separate tax parcel."
¶ 49. Over two months later, the parties filed a brief stipulation. Only a few undisputed facts were presented. The recitals in the stipulation included that "the subject property is comprised of 150.36 (gross) acres of agricultural land held as five contiguous separate tax parcels by the plaintiff."3
¶ 50. The three-page, double-spaced stipulation primarily consisted of the parties' offers of proof and a recitation of the procedural history of the case. It incorporated the report of Spiegelberg's appraiser as *629her offer of proof, and stated that as a further offer of proof she "would establish that before the taking, the five tax parcels either had direct access to existing roads or could have been provided access by the plaintiff through property owned by plaintiff."
¶ 51. The stipulation also incorporated the report of the DOT'S appraiser as its offer of proof, and stated that as a further offer of proof it "would establish that the subject property had not been transferred for five years prior to the taking, [and] had been used in its consolidated form, as a dairy farm, which at the time of the taking the plaintiff had leased, with the exception of the residence, for use as a farm."
¶ 52. The circuit court entered judgment on the stipulation, and the DOT appealed.
¶ 53. Having detailed what did and did not occur in the circuit court proceedings, I turn to the majority's analysis. The majority concludes that "the circuit court correctly determined that the Spiegelberg appraisal complied with Wis. Stat. § 32.09(6) and the DOT appraisal did not." Majority op., ¶ 32. Putting aside whether the circuit court can be said to have actually made any such determination, the majority's conclusion largely rests on two determinations, neither of which holds water on the inadequate record before us.
¶ 54. First, the majority determines that the Spiegelberg appraisal's "consideration of residential development and recreational use" was "reasonable" because each parcel was "readily saleable" and the zoning "permitted" those uses. Id., ¶ 26. Therefore, reasons the majority, the proposed uses were "not speculative." Id. In making this determination, the majority first introduces the concept of "readily saleable" without defining it, thereby begging the question of whether *630this is the same standard as that required under Clarmar: "reasonably probable."
¶ 55. If the standards are the same, then the majority has apparently concluded that Spiegelberg's proposed uses are "reasonably probable" as a matter of law.4 Based on what facts?
¶ 56. Second, the majority determines that Spiegelberg's appraisal "followed [the] directive" that just compensation should be based on the most advantageous use. Majority op., ¶ 27. This is a curious determination for an appellate court to make on the record here because the parties' respective appraisals show that the most advantageous use remains in dispute.
¶ 57. Spiegelberg's appraisal report states that "[t]he land use [in the area] is changing from agricultural to residential. There are several newer residential developments starting in the area." In the report, her appraiser opines that "[t]he Highest and Best Use of the property lying to the south of [a highway cutting through the northernmost parcel] is for residential development...."
¶ 58. The DOT's appraisal report, in contrast, states that "[a]t this time the neighborhood is considered to be in the stable to slow growth life stage." The DOT's appraiser opines that whether vacant or as currently improved the highest and best use is for "agricultural and recreational use." It also states that "[a] portion of the subject is in a designated flood plain" *631and "[a] portion of the subject is in a designated wetland." In addition, the DOT'S appraisal report notes that in order for the land to be used for residential purposes, "[p]rivate systems would be required; well for water and a mound, conventional or holding tank for sewerage."
¶ 59. The majority is apparently concluding, as a matter of law, that the most advantageous use of the property as affects present value is as separately-sold parcels for residential development or recreational use. This requires an unspoken finding by the majority that the report of Spiegelberg's appraiser is credible while the report of the DOT'S appraiser is not. Even if this court could make such a finding, how can the majority make this finding on the record before us? What facts support it?
¶ 60. Moreover, the record leaves unclear the significance of some of the few undisputed facts. For example, the parties stipulated that Spiegelberg's property is divided into five tax parcels. Also, Spiegelberg conceded at oral argument that there has not been a platted subdivision of the property or a certified survey. The majority does not explain the significance or insignificance of these facts with respect to whether the prospective use of the land for residential development or recreational purposes is reasonably probable.
¶ 61. It appears the record is silent as to the significance or insignificance of these facts. At oral argument, counsel for the DOT attempted to provide some explanation. It does not support the majority's conclusion:
There is no evidence in the record as far as I'm aware that would support a determination by the court — by this court or by the trial court — that the *632parcels needed no further permits. It's true that the properties could be sold — theoretically.... The tax key number as far as I'm aware really doesn't mean anything per se with regard to the property. It is a methodology, which is developed by — as far as I'm aware — by . .. the assessor for purposes of identifying the property.
¶ 62. In their stipulation, the parties recognized the distinct possibility that the record might be inadequate for a reviewing court to reach the conclusion the majority does, that Spiegelberg's appraisal is admissible evidence as a matter of law and the DOT'S is not. One of the few paragraphs in the stipulation representing the substance of the parties' agreement provides as follows:
If, upon appeal it is determined insufficient facts exist to establish the correct jury instructions and special verdicts for the damage analysis before and after the taking, the matter will be remanded to the circuit court for further proceedings consistent with the ruling by the appellate court.
¶ 63. Indeed, Spiegelberg even concedes in her brief that the only information in the record as to the most advantageous use is contained in the appraisal reports. She also recognizes that a remand for further factual development is necessary if an inquiry into most advantageous use is required:
Other than what the appraisers describe as the Highest and Best Use, the record contains no information about what might be the most advantageous use for the subject property. The only thing addressed at the hearing was the existing use. The trial court was obviously not concerned about this issue since it reached its ruling without making any inquiry about the most advantageous use. Spiegelberg also contends that the ruling by the trial court and the position which it supports in this *633case does not rely upon such a determination. In the event this Court, though, believes that a ruling on this issue does require an inquiry into the most advantageous use for the subject property, then this case will need to be remanded to the trial court for testimony on that use.
(Emphasis added.)
¶ 64. The final statement from this passage in Spiegelberg's brief is sage advice. The majority should have followed it.
¶ 65. At oral argument Spiegelberg reiterated this passage from her brief, in response to questioning about the lack of an evidentiary hearing, adequate record, or circuit court determination as to the issue of most advantageous use. Counsel for Spiegelberg said: "I understand that and it's partly because of what you're addressing right now why I put that passage in our papers because I can certainly see the court having a question about that." (Emphasis added.) Similarly, when asked what rule should result from this case, counsel said:
The rule would be one where this court would recognize the smallest legal division that's possible ... provided that there was an inquiry into the highest and best use, and that that subdivision was consistent with that highest and best use.
(Emphasis added.)
¶ 66. Unlike the majority, I recognize that the record is inadequate for this court to meaningfully apply the proper legal standards. We cannot determine with any confidence whether Spiegelberg's proposed use of the land as separate parcels is "reasonably probable" and not "speculative." Clarmar, 129 Wis. 2d at 92. On this record we cannot determine whether the *634proposed use is the "most advantageous use but only such use as actually affects the present market value." Section 32.09(2) (emphasis added). The circuit court, not this court, should resolve the factual disputes raised by the parties' appraisal reports as to the most advantageous use. Additional proceedings are necessary to determine whether the individual characteristics and unique qualities of the property should preclude either Spiegelberg's valuation approach or the DOT'S.
¶ 67. I would therefore reverse the circuit court and remand for further proceedings. At those proceedings, the circuit court could apply the proper legal standards after Spiegelberg has an opportunity to introduce evidence to support her theory that her proposed use of the property is the most advantageous use and is reasonably probable. "If an owner of land wishes to assert that the land being taken in eminent domain is not at the present time being used at its highest potential, it is incumbent upon [the owner] to establish this fact." Julius L. Sackman, 4 Nichols on Eminent Domain § 12B.14, at 12B-139 - 12B-140 (3d ed. 2005) (emphasis added).
¶ 68. Ultimately the majority's analysis is unsatisfying at best. On the inadequate record before us, the proper legal standards simply cannot be meaningfully applied. I therefore respectfully dissent.
¶ 69. I am authorized to state that Chief Justice SHIRLEY S. ABRAHAMSON joins this dissent.
All references to the Wisconsin Statutes are to the 2003-04 version.
If the circuit court had some other reason or rationale, it is not clear from the record.
The other undisputed facts in the stipulation were as follows:
(A) "The five tax parcels are contiguous except for the two roads that cut through the parcels as shown in Exhibit A."
(B) "[T]he taking consisted of a total fee acquisition of 11.08 acres (9.21 acres of new right-of-way and 1.87 acres of an existing right-of-way) from three of the five separate legal parcels, as shown in Exhibits B and C."
(C) Exhibit A was a one-page aerial map of the property before the taking. Exhibit B was a one-page aerial map of the property after the taking. Exhibit C was three pages of DOT project plat maps.
The majority's use of the stipulation conflates undisputed facts with disputed facts. The first two of seven "facts" in ¶ 6 of the majority opinion actually come from Spiegelberg's offer of proof, which was competing with the DOT'S offer of proof.
If the standards are not the same, then it remains unclear why the majority opinion has failed to apply the reasonably probable standard. Perhaps the answer is that the proper standard cannot be meaningfully applied on the inadequate record before us.