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Brown Deer road suit could reach Supreme Court

A lawsuit over a $2.3 million street and landscaping project in Brown Deer might reach the Wisconsin Supreme Court even though construction is almost finished.

The village in 2011 sued 11 property owners after they refused to sell their land for the project without first going through the eminent domain process. Four have since settled, but the seven who remain have asked the Supreme Court to review an Oct. 29 state Court of Appeals decision that found in favor of the village.

The village is expected to respond to the petition by Dec. 6, said Alan Marcuvitz, an attorney with Milwaukee-based Michael Best & Friedrich LLP who is representing the village in the case.

But the lawsuit did not stop the project, nor did it prevent the village from using the property owned by the original 11 defendants.

Work is 95 percent completed, said Nate Piotrowski, Brown Deer’s community services director, and the entire project should be finished by spring.

Hugh Braun, an attorney with Milwaukee-based Godfrey, Braun & Frazier LLP who is representing the property owners, said his clients were frustrated that the village carried on with the project despite the lawsuit, but that their primary focus is on their questions about the law.

In fact, Braun said, his clients’ legal costs already have exceeded the $95,368 in total they were seeking from the village in exchange for their property.

“The significance of the case,” he said, “goes far beyond these individual circumstances.”

The case revolves around a state statute that establishes the rules for determining the width of public roads. According to the statute, highways that have been used as public roads for 10 years or more and do not have a recorded width in an official document are automatically presumed to be 66 feet wide.

It was that provision, the village argued, that let it sidestep the eminent domain process when claiming possession of the roads and some adjacent parcels the property owners had assumed they owned. The village then expanded the roads and added sidewalks and landscaping.

The village made that argument when suing the 11 property owners who refused to accept the village’s offer of $100 for each one-twentieth of an acre it wanted. Eminent domain, which the property owners wanted, would have forced an appraisal of the property to be seized and mediation between the parties before a sale.

“Essentially, it really was all about money,” Piotrowski said. “They felt they were entitled to more money, and the eminent domain process would have granted them more money.”

The defendants argued that because some buildings and yards extended into the 66-foot width, the roads were narrower, meaning Brown Deer did not own as much land around the existing pavement as the village claimed. The defendants also challenged the constitutionality of a statute that sets width without consideration of existing buildings.

Milwaukee County Circuit Judge Richard Sankovitz affirmed the village’s position in February, ruling that the roads were 60 to 66 feet wide and belonged to the village. The appeals court affirmed Sankovitz’s ruling.

But the property owners, Braun said, might have one last chance.

“There’s nothing we can do,” he said. “The Supreme Court is the final level on this.”

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