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Judge rules Brown Deer can build sidewalks

(Staff photo by Kevin Harnack)

Brown Deer took three steps Wednesday toward prevailing in a land dispute with a group of property owners but still faces one stumbling block: the 8700 block of North Deerwood Drive.

Milwaukee County Circuit Court Judge Rick Sankovitz made his second partial ruling in the lawsuit, deciding the village can build sidewalks along five roads, did not violate the property owners’ constitutional rights and does not have to pay legal fees for a handful of dismissed defendants.

However, Sankovitz said he wanted to see more evidence before determining the width of the village’s right-of-way on the 8700 block of North Deerwood Drive. That block is home to Kurt Schulz Delicatessen and Restaurant, which juts into the village’s right-of-way as defined by a state statute.

The lawsuit stems from Brown Deer’s plans for a reconstruction project targeting a triangle of the village that includes Deerwood Drive, River Lane, Ruth Place, and 42nd and 43rd streets. The village seeks to rebuild those roadways, add sidewalks and other decorative touches, and install new sewer pipes, among other things.

In the process, Brown Deer learned that deeds to 51 properties included those roads to the center lines. Most property owners accepted the village’s offer to buy roadway sections for about $200 each, but some held out with the hope Brown Deer could be forced to pay more.

The village then sued those holdouts and asked Sankovitz to agree that Brown Deer technically owned the roads already because it maintained them. Furthermore, Brown Deer claimed, the roads are public highways and legally 66 feet wide, regardless of the width of their pavement, under state statute. The width beyond the pavements’ edges would accommodate plans to build sidewalks.

In December, Sankovitz ruled the five roads are public highways. Ruth Place and 42nd Street are 60 feet wide, he decided, based on the buildings that line those roadways, but the remaining three are 66 feet wide.

He delayed decisions on other points until Wednesday’s hearing.

In a brief filed in January, Hugh Braun, who represents the property owners, claimed the state’s definition of a highway included only a paved thoroughfare used for vehicular travel and didn’t give Brown Deer the authority to build sidewalks.

Sankovitz disagreed, however, and pointed to a definition of highway offered by the Legislature.

“A highway is not just a place for vehicles,” he said. “It’s any public way.”

Sankovitz also rejected the idea that it was unconstitutional for Brown Deer to acquire the roadways under the state statute.

He described a four-prong test the property owners would have to pass in order to prove their constitutional right to property had been violated.

Under that test, they had to prove they hold a legal interest in the property. That interest had to be illegally taken by the village. The village had to take that land for use by the public. The village also had to fail to pay the former owners for the land.

However, Sankovitz said, the property owners couldn’t pass the first prong of that test.

“It cannot be said beyond a reasonable doubt,” he said, “that the property owners own every inch up to the paved portion of the roadway.”

Sankovitz rejected Braun’s third claim as well, that the village should be sanctioned for erroneously including three defendants whose deeds already included easements for the village to use the roadways. Both parties failed to do their homework, he said.

The only outstanding question is how wide North Deerwood Drive is on one particular block. In December, Sankovitz ruled that roadway was 66 feet wide except for the area in front of the deli. If the roadway is 66 feet wide, Sankovitz said, part of the deli’s steps are in the road.

On Wednesday, Braun argued that weaving the edge of the highway around the front of the deli is improper. If a property owner successfully rebuts the idea that the roadway is 66 feet wide, Braun said, that roadway only can be as wide as the area the village actually uses. The burden of proof shifts to Brown Deer, he said, to show how wide that area is.

Sankovitz agreed but said he needed more information. Neither party was prepared to offer evidence on that point, so a hearing was set for Feb. 21.

If a final ruling is made then, the village could send the project out for bid in March and likely start construction by mid-May, said Nate Piotrowski, Brown Deer’s community development director.

The project was expected to cost $2.3 million last year, based on a low bid submitted by Green Bay-based Advance Construction Inc. However, the project has to be rebid because of the delay caused by the lawsuit, and Piotrowski said changing construction costs could raise that price tag.

The project likely will take five months to complete.

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