July/August 2024 Issue

Also in this issue: Restrictive Renewable Energy Ordinances May Be Vulnerable to Legal Challenge     |     Court of Appeals Invalidates PSCW Demand Response Order as Unpromulgated Rule

Wisconsin Supreme Court Upholds Condemnation of Land for Sidewalks

Julia Potter | 08.01.24

On June 19, 2024, the Wisconsin Supreme Court issued a decision in Sojenhomer LLC v. Village of Egg Harbor, 2024 WI 25, a case clarifying the scope of municipal condemnation authority. In its 4 – 3 decision, the Court held that a 2017 law that prohibits Wisconsin municipalities from condemning land to extend or establish ​“pedestrian ways” does not prevent municipalities from condemning land for road projects that include sidewalks.

The case arose from a highway improvement project in the Village of Egg Harbor. The Village had received complaints from residents about the busy intersection of County Highway G and State Highway 42, so the Village Board engaged an engineering firm to study issues with the intersection and develop a plan to address them. Along with the addition of street lighting, storm sewers, and buried utility lines, the resulting plan included limiting parking to the west side of Highway G and adding a new sidewalk on the east side. The Village followed the process under Wis. Stat. § 32.05 to condemn the land necessary to complete the project.

That land included 0.009 acres belonging to Sojenhomer LLC, which operates the Shipwrecked Brew Pub and Restaurant on the east side of the highway. The condemned land had been used by Sojenhomer for parking in connection with the restaurant, but the Village intended to build a new sidewalk there and restrict parking to the opposite side of the street.

Sojenhomer challenged the Village’s right to condemn the land on the basis of Wis. Stat. § 32.015, which provides that ​“Property may not be acquired by condemnation to establish or extend a recreational trail; a bicycle way, as defined in s. 340.01(5s); a bicycle lane, as defined in s. 340.01(5e); or a pedestrian way, as defined in s. 346.02(8)(a).” Sojenhomer argued that the proposed sidewalk was a ​“pedestrian way” and therefore, under Wis. Stat. § 32.015 and the related § 61.34(3) (b), the Village could not exercise its condemnation authority to acquire land from Sojenhomer to build the sidewalk.

The Wisconsin Court of Appeals agreed with Sojenhomer and held that the condemnation of Sojenhomer’s land violated state law. This Village of Egg Harbor appealed that decision to the Wisconsin Supreme Court and both the Wisconsin Department of Transportation and the League of Wisconsin Municipalities filed amicus briefs in support of the Village’s position. The Wisconsin Supreme Court reversed the Court of Appeals, holding that condemnation of Sojenhomer’s land to build a sidewalk did not violate Wis. Stat. §§ 32.015 or 61.34(3)(b).

The Supreme Court concluded that a sidewalk is not a ​“pedestrian way” under Wis. Stat. § 346.02(8)(a), and therefore the statutory prohibition on condemnation for pedestrian ways does not apply to sidewalks. The Court reached this conclusion after a close analysis of Wis. Stat. § 346.02(8), which defines pedestrian way as ​“a walk designated for the use of pedestrian travel” and provides that the rules of the road set out in Chapter 346 that apply to ​“highways, streets, alleys, roadways, and sidewalks also apply to pedestrian ways.” The Court reasoned that, if sidewalk and pedestrian way meant the same thing there would be no need for a statute to specify that the rules that apply to one also apply to the other. In addition, Wis. Stat. § 346.02(8) provides that assessments may be made for the installation of public utilities above or below a pedestrian way ​“as if” such pedestrian way were a sidewalk (or highway, street, alley, or roadway). This language suggests that sidewalk and pedestrian way have separate, non-overlapping meanings, because there would be no need for a statute allowing pedestrian ways to be treated ​“as if” they were sidewalks if the two were already one and the same thing. The Court also relied on an analysis of statutory history, other related statutes, and the text of Wis. Stat. § 32.015 in support of its conclusion that sidewalks are not pedestrian ways.

This decision is a significant one for Wisconsin municipalities. It prevents a single hold-out property owner from thwarting road projects that include sidewalks and makes clear that, in spite of Wis. Stat. § 32.015, municipalities may still condemn land for such purposes. However, when planning for projects involving condemnation, municipalities should be sure to keep in mind the distinction between sidewalks, for which condemnation is permitted, and recreational trails, bicycle ways, bicycle lanes, and pedestrian ways, for which condemnation remains prohibited under Wis. Stat. § 32.015 and related statutes.