Brown Deer, residents await judge’s ruling in road dispute

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A group of Brown Deer residents and the village are expecting a judge’s ruling soon in a dispute over who owns roads targeted for a renovation project.

Brown Deer filed the lawsuit after it learned, while preparing for the sidewalk and landscape project, that property owners on Deerwood Drive, River Lane, Ruth Place, and 42nd and 43rd streets owned the roads.

Most of those property owners accepted the village’s offer of about $200 for their portions of the roads. But some held out to force Brown Deer to use eminent domain and potentially pay more for the property.

But when the dispute went to trial in December, the village argued it should not have to pay anything to those holdouts. Brown Deer maintains those roads, the village argued, and the public uses them, so they are public highways understood to be owned by the village.

Furthermore, the village claimed, state statute considers public highways to be 66 feet wide regardless of how wide their pavement is. That statutory width would accommodate the village’s plans for the sidewalks and decorative improvements.

In December, Milwaukee County Circuit Judge Rick Sankovitz ruled the roads are public highways. He decided the legal widths of Ruth Place and 42nd Street are limited to 60 feet because of buildings along the roads, but the others are 66 feet.

However, Sankovitz said he could not make a final ruling and directed the attorneys for both sides to answer three questions. They have since filed their answers, and Sankovitz will consider those arguments Wednesday.

First, Sankovitz asked both parties to explain whether a public highway designation lets Brown Deer do more than repave the roads.

Hugh Braun, the property owners’ attorney, said plans to build sidewalks overstep the village’s authority, according to a brief filed in January. He cited the state’s definition of a highway as being open to the public “for the purposes of vehicular travel” as proof that the village only has authority over the paved surface.

Braun also claimed, according to his brief, that the village can only acquire an easement to the disputed property, meaning the residents still would own the land and the village would not be able to complete all of the improvements.

The village disputed that and claimed Braun placed too much weight on “vehicular travel.” Those words were included to clarify rather than limit a highway’s definition, according to briefs filed by attorney Alan Marcuvitz on behalf of the village.

“The flaw in the defendants’ position is evident by a view down almost any street,” according to one of Marcuvitz’s briefs. “If defendants were correct, sidewalks and other related improvements would be scarce in Wisconsin. In fact, under defendants’ theory, sidewalks would all be illegal.”

Sankovitz also asked if it is unconstitutional to let the village acquire the land under the statute governing the designation of public highways.

The village maintained it is not, according to its briefs, because the property owners can dispute the process.

Braun argued it is unconstitutional, according to his brief, and used as an example a case in Minnesota that found a statute letting a municipality take private land to expand a public road without compensating the owner violated the U.S. Constitution.

Finally, Sankovitz asked if the village should have to pay attorney costs for a handful of defendants who have been dismissed. Those defendants proved their properties’ titles did not include the roads.

Braun claimed Brown Deer was “careless” in naming those defendants and should pay their attorney fees, according to his brief. Furthermore, he argued, Brown Deer should pay all of his clients’ fees because it only filed the lawsuit to “avoid its responsibility” to take the land through eminent domain and because the lawsuit has undergone “a remarkable bungling.”

The village disputed both claims, according to its briefs, and argued it cannot be compelled to pay each defendant’s court costs under state statute.

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