Wisconsin Supreme Court resolves Door County sidewalk issue

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On June 19, 2024, the Wisconsin Supreme Court reversed a lower court decision that impacts the use of a Door County sidewalk.

According to court documents obtained by the Wisconsin Law Journal, Justice Rebecca Dallet delivered the majority opinion of the Court, in which Justices Ann Walsh Bradley, Jill Karofsky and Janet Protasiewicz joined.

Justice Annette Ziegler filed a dissenting opinion, in which Justices Rebecca Bradley and Brian Hagedorn joined.

According to court documents, amicus curiae briefs were filed by Clayton P. Kawski, assistant attorney general, and Ryan Sendelbach, Claire Silverman and the League of Wisconsin Municipalities.

The issue in this case is whether sidewalks are “pedestrian ways” as that term is defined in Wis. Stat. § 346.02(8)(a). If sidewalks are pedestrian ways, then the parties agree that Wis. Stat. §§ 32.015 and 61.34(3)(b) prohibited the village from acquiring Sojenhomer’s property to build one, according to the court’s decision.

The village argued a contextual reading of the definition of “pedestrian way” was necessary.

The Wisconsin Supreme Court’s majority agreed.

“We hold that §§ 32.015 and 61.34(3)(b) did not prohibit the Village from condemning Sojenhomer’s property to build a sidewalk,” the Court said.

As previously reported by the Wisconsin Law Journal in December of 2023, the Wisconsin Supreme Court granted the village of Egg Harbor’s petition to review a Wisconsin Court of Appeals decision involving Shipwrecked Brew Pub and Restaurant — a Door County microbrewery and mainstay owned by Sojenhomer LLC.

During a December interview with the Wisconsin Law Journal, village of Egg Harbor officials said Shipwrecked Brew Pub and Restaurant was the only business in the village that escalated a land dispute to litigation from a 2021 roadway improvement project.

“This was the only (property owner) we had a legal case,” said Village Administrator Megan Sawyer, noting “we (village of Egg Harbor) followed the proper legal process.”

According to Sawyer, the litigation arose after the village launched a project to improve a roadway. The project was completed in 2021 and included adding street lights and a sidewalk.

“There is now a designated area for pedestrians. A sidewalk in that location is a huge benefit to community and to that business specifically as pedestrians previously had to share the road with motor vehicle traffic,” Sawyer noted.

“Given our tourism season, that corner is very congested with State Highway 42, businesses and a park. It’s a highly trafficked area. I don’t know why the property owner would contest this,” Sawyer added.

During an interview with the Wisconsin Law Journal, Shipwrecked Brew Pub General Manager Joe Smith disagreed with the village’s assessment of the litigation now pending before the Wisconsin Supreme Court and further alleged the village had previously unlawfully denied a building expansion project.

Regarding the recent road expansion, debate remains regarding the truth intent of the project.

“The village is saying it is about safety, but in reality the goal of the project was to connect a sidewalk from downtown Egg Harbor to the public beach. The sidewalk has been constructed already while litigation was pending. The sidewalk runs from Harbor View Park to the head of the Egg Harbor Bird Trail, which is a gravel walkway through the woods, which leads down to the beach,” Smith said.

According to Smith, the property owner made several attempts to resolve the issue prior to commencing litigation.

“We tried to negotiate and work out a solution. The village went into this project with the belief that they had condemnation power. Because of that power, they were unwilling to negotiate. We offered the land in exchange for burying the power lines on our schedule. The village president refused to bring our offer to the Village Board at a special meeting. There is personal animosity from the village president. Prior to his taking office, I was the village president for two terms. He ran a write-in campaign against me and won,” Smith noted.

“It’s a shame that the village of Egg Harbor chose to be so adversarial for this project. The village had been planning and designing the reconstruction of County Highway G for years. Their original design plan kept all improvements within the right-of-way and had the sidewalk on the opposite side of the street. That plan changed when the owner of the property next to Shipwrecked learned that their front porch encroached into the right-of-way. That property is the home of Blacksmith Clothing and is owned by Lisa VanLannen, chair of the Parks & Public Works committee and a village trustee,” Smith added.

“There was an opportunity to collaborate, but instead, the village chose to be heavy-handed and take the property it desired even though the plain language of the law says that eminent domain can’t be used to take land for, among other things, a pedestrian way,” Smith said.

The Wisconsin Supreme Court was asked to decide if recently enacted prohibitions on condemnation for “pedestrian ways” set forth in Wis. Stat. § 32.015 and Wis. Stat. § 61.34(3)(b) prohibit Wisconsin municipalities from exercising their condemnation powers pursuant to Wis. Stat. § 61.34(3)(a) to widen and reconstruct a road when a sidewalk will be located within the right-of-way.

The Wisconsin Supreme Court began hearing oral arguments in the case on Dec. 19.

Sojenhomer LLC owns the pub’s property in Egg Harbor where County Highway G and State Highway 42 converge, according to court documents.

According to court documents, beginning in about 2015, the village began discussing safety improvements to Highway G, which largely focused on installing a sidewalk. The village retained the services of an engineering firm to determine what improvements could be made to Highway G and Highway 42.

The engineering firm summarized several deficiencies with Highway G that were “safety issues,” officials said, noting the village, in conjunction with the engineering firm, developed a plan to address these deficiencies, officials added.

The plan proposed that Highway G be “urbanized with (a) storm sewer,” that parking be limited to one side of the road, that a sidewalk be constructed on the east side of the road — the side on which Sojenhomer’s property sits — and that decorative street lighting be installed on both sides of the road. The village eventually reached an agreement with Door County to share some of the costs of the proposed project on Highway G. The county had planned to mill and resurface Highway G in 2018 or 2019, but decided to delay those improvements to coincide with the village’s reconstruction of the road. The village subsequently issued a relocation order pursuant to Wis. Stat. § 32.05, authorizing the village to acquire certain real estate to complete the proposed improvements, court documents state.

According to court documents, in February 2020, the village sent Sojenhomer a “written offer (of $19,500) to purchase fee title to 0.009 acres of additional right of way and a temporary limited easement of 0.071 acres of (Sojenhomer’s property).” The offer explained that the land was “needed for (the) village(‘s) … right of way reconstruction of (Highway G).”

In response, Sojenhomer obtained an appraisal of the village’s proposed acquisition and temporary limited easement; the appraisal valued Sojenhomer’s loss at $57,500.

The village, in turn, served Sojenhomer with a jurisdictional offer for $38,500, nearly double the amount of money originally offered, but Sojenhomer rejected that offer.

In August 2020, Sojenhomer filed the lawsuit in Door County Circuit Court seeking to enjoin the village from acquiring the desired portion of Sojenhomer’s property through condemnation, court documents stipulate.

Sojenhomer alleged that the village was seeking to condemn its property to construct a sidewalk on the east side of Highway G. Sojenhomer further alleged that “(t)he village’s condemnation of (its) property is only necessary to construct a sidewalk,” and, therefore, the village’s condemnation “is in violation of Wis. Stat. § 32.015.”

According to Wisconsin Supreme Court officials, the parties filed cross-motions for summary judgment, and the circuit court granted the village’s motion. The court stated that “if (a sidewalk) is (a pedestrian way), then the village may not obtain the Sojenhomer property by eminent domain because there’s really no question that the area that they took from Sojenhomer was used for a sidewalk.” The court nevertheless concluded that “a sidewalk is not a pedestrian way,” and, therefore, Wis. Stat. § 32.015 did not prohibit the village from condemning Sojenhomer’s property.

Sojenhomer appealed to the Court of Appeals successfully. The Court of Appeals reversed the Circuit Court’s order and remanded for further proceedings.

The Court of Appeals held that the village used the power of condemnation to acquire Sojenhomer’s property to establish a pedestrian way in violation of Wis. Stat. §§ 32.015 and 61.34(3)(b), and summary judgment should have therefore been granted in Sojenhomer’s favor.