Milwaukee judge delays decision in Brown Deer property dispute

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Five roads at the heart of a property ownership dispute in the village of Brown Deer are public highways, Milwaukee County Circuit Court Judge Rick Sankovitz concluded Tuesday, but the lawsuit brought by the village against a group of landowners will take more time to resolve.

Arguments began Monday in the case to determine whether Brown Deer should be compelled to use eminent domain in a land dispute with property owners.

Fifteen defendants were named when the village filed suit last December, but that number has dwindled to seven after some defendants were dismissed.

After two days of testimony from landowners, village officials, surveyors and engineers, Sankovitz concluded Tuesday that he could not make a final ruling, yet decided two issues of fact.

First, in deciding all five roadways are public highways, the judge determined the village’s rights of way are narrowed in some cases but are at least 60 feet on each roadway.

Hugh Braun, the attorney representing the group of property owners, argued this week against the assertion that the village owns as much as a 66-foot right of way on each street and tried to use the example of Kurt Schulz Delicatessen and Restaurant on North Deerwood Drive to disprove that. The bottom step leading to one of the deli’s entrances extends into that 66-foot space, he argued, which proves that the builder considered that land to be privately owned.

Sankovitz agreed, stating the right-of-way in front of the deli excludes its front steps.

The judge also responded to the defendants’ testimony that the project likely would diminish the use of their properties, such as hampering customer or tenant parking, limiting play space for children and obliterating investments in landscaping. He determined that the reconstructed roadways and sidewalks generally will follow the course of existing pavement.

Sankovitz denied the suggestion that residents would lose the use of their lawns if the right-of-way was granted to the village.

“This is not a situation,” he said, “where there’s going to be a 66-foot-wide swath that is going to be paved from one side to another.”

Sankovitz said there are three outstanding issues he wants to see more information on before making a final ruling in the case.

Both sides are set to submit briefs detailing their positions on: whether granting the rights of way to the village equates to full ownership or only an easement to use the property; whether the statute that Sankovitz used to determine the roadways are public highways is constitutional or might have infringed on the property owners’ rights; and whether the village improperly included some defendants in the lawsuit and is liable for costs.

A hearing is scheduled for Feb. 13, after both sides have submitted briefs detailing their positions on the remaining issues.