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  • March 20, 2023

    Prohibition on Condemnation Power Applies to Sidewalk Projects

    Statutory provisions that bar municipalities from condemning land for pedestrian walkways apply to acquisitions for sidewalks, the Wisconsin Court of Appeals has ruled.

    Jeff M. Brown

    A Man In An Orange Safety Vest, A Yellow Hard Hat, And Work Boots Kneels On A Curb As He Uses A Trowel To Smooth Out Wet Concrete Poured To Make A Sidewalk

    March 20, 2023 – Statutory provisions that bar municipalities from condemning land for pedestrian walkways apply to acquisitions for sidewalks, the Wisconsin Court of Appeals has ruled.

    In Sojenhomer LLC v. Village of Egg Harbor, 2021AP1589 (March 14, 2023), the Court of Appeals District III held that the inclusion of the terms “sidewalk” and “pedestrian way” in the relevant provisions was not surplusage.

    Narrow Road

    Sojenhomer LLC (Sojenhomer) owns a piece of land located between County Road G and State Highway 42 in the Village of Egg Harbor (Village), near where the roads converge.

    Jeff M. Brown Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    People complained that County Road G was too narrow and there wasn’t room to park or walk along the side of the road. After discussions about installing a sidewalk along County Road G, the Village hired an engineering firm to assess potential improvements to the roads.

    The Village and the engineering firm created a plan to address the road’s deficiencies. The plan called for a sidewalk to be built on the east side of County Road G – the side that abuts Sojenhomer’s land.

    The Village issued a re-location order under Wis. Stat. section 32.05, which authorized the Village to buy land for the sidewalk and to make other improvements called for in the plan.

    In February 2020, the Village offered to buy .009 acres of Sojenhomer’s land  to expand the road’s right of way and pay for a temporary easement of .071 acres. The Village later doubled its offer, but Sojenhomer rejected it.

    Landowner Files Lawsuit

    Sojenhomer sued the Village in Door County Circuit Court in August 2020, to enjoin it from obtaining the land by condemnation.

    Sojenhomer argued that the Village wanted to condemn the property to build a sidewalk on the east side of County Road G, and that the proposed condemnation ran afoul of section 32.015.

    The circuit court dismissed Sojenhomer’s case for failure to state a claim upon which relief could be granted.

    After Sojenhomer filed an amended complaint, the parties engaged in discovery.

    In the discovery, Michael Simon, an engineer with the engineering firm hired by the Village, said that were it not for the sidewalk, the Village wouldn’t have needed to condemn the property to add a light pole and would have designed improvements to the road inside the existing right of way.

    Question of First Impression

    Writing for a three-judge panel, Judge Thomas Hruz noted that no state court had addressed whether a sidewalk is a “pedestrian way” for purposes of section 32.015 and 61.34(3)(b).

    Section 32.015 specifies that condemnation may not be used to, among other things, establish or extend a “pedestrian way, as defined in Wis. Stat. section 346.02(8)(a).”

    Section 61.34(3)(b) specifies that a village board may not use condemnation to acquire property to, among other things, “establishing or extending … a pedestrian way, as defined in Wis. Stat. section 346.02(8)(a).”

    Judge Hruz noted that section 346.02(8)(a) defines “pedestrian way”  as “a walk designated for the use of pedestrian travel.”

    That wording was broad and placed no limits on where a walk for pedestrian travel must be located, Hruz pointed out. He reasoned, therefore, that a sidewalk is included within the section’s definition of a pedestrian way.

    Argument Against Surplusage

    The Village argued that to include a sidewalk with the definition of a “pedestrian way” in section 346.02(8)(a) would create surplusage, because the section says that “All of the applicable provisions of this chapter pertaining to highways, streets, alleys, roadways and sidewalks also apply to pedestrian ways.”

    But Judge Hruz reasoned that the definition of “pedestrian way” in section 346.02(8)(a) was broader than the definition of a sidewalk because a pedestrian way can be but isn’t always adjacent to a roadway.

    “In other words, the term pedestrian way includes both: (1) sidewalks – i.e., walks adjacent to roadway for the use of pedestrian travel … and (2) all other walks designated for pedestrian travel that are not adjacent to a roadway, such as a walking path through a parcel of property,” Hruz wrote.

    Given that interpretation, Judge Hruz reasoned, the term “sidewalks” had a function in section 346.02(8)(a) and was not surplusage.

    “Put differently, if the word ‘sidewalks’ were omitted from para. (a), then the provisions pertaining to sidewalks in ch. 346 would not apply to pedestrian ways that are not sidewalks,” Hruz wrote. “Accordingly, the term ‘sidewalks’ still serves a necessary function even though the term ‘pedestrian ways’ includes sidewalks.”

    Condemnation Powers Construed Narrowly

    The Village argued that if the legislature had intended to bar municipalities from condemning property to build or extend a sidewalk, it would have included the term “sidewalk” in section 32.015.

    But Judge Hruz reasoned that because the definition of “pedestrian way” contained in section 346.02(8)(a) includes sidewalks, there was no need for the legislature to include the term “sidewalk” in section 32.015.

    Additionally, Hruz pointed out, accepting the Village’s argument would contravene the canon of statutory construction that holds that provisions relating to a condemnor’s power should be strictly construed.

    Not Solely for Sidewalk

    The Village also argued that even if a sidewalk is a pedestrian way for purposes of sections 32.015 and section 61.34(3)(b), it hadn’t condemned Sojenhomer’s property solely for the purpose of building a sidewalk.

    But Sojenhomer pointed to Simon’s statements in discovery that were it not for the sidewalk, the Village wouldn’t have needed to condemn Sojenhomer’s land.

    Judge Hruz concluded that Sojenhomer’s was the better argument.

    “Although the Village’s acquisition of Sojenhomer’s property might have been part of a broader reconstruction project to Highway G, the undisputed facts show that, regardless of the constellation of improvements made to Highway G, the Village still acquired Sojenhomer’s property through condemnation ‘to establish’ a pedestrian way,” Hruz wrote.

    “Such an acquisition violates the plain language of Wis. Stat. sections 32.015 and 61.34(3)(b).

    The court of appeals reversed the case to the circuit court for further proceedings.

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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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