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Wisconsin Supreme Court resolves Door County sidewalk issue

By: Steve Schuster, [email protected]//June 25, 2024//

Door County

Sojenhomer LLC owns the pub's property in Egg Harbor where County Highway G and State Highway 42 converge. Staff photo: Steve Schuster

Wisconsin Supreme Court resolves Door County sidewalk issue

By: Steve Schuster, [email protected]//June 25, 2024//

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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.


Timeline provided by business owner

Oct. 24, 2017 – Plan Commission Meeting
Heise stated that for a while there had been discussions regarding adding a sidewalk on CTH G and he said that he noticed there will not be any side doors on CTH G if there would be potential to put this sidewalk in. Pollman reiterated that the Village’s plan that had been presented to them called for the elimination of part of the dining patio and that wasn’t an avenue he wished to pursue based on the revenue generating opportunity possessed by those patio dining tables.

Nov. 1, 2017 – PPW Meeting
In discussion on an agenda item labels “Grant update for roadway projects,” Heise informs the PPW committee of his interaction with the Pollman’s at the Plan Commission meeting. He goes on to say that eminent domain may be considered.

Dec. 6, 2017 – PPW Meeting
In a discussion under the heading “TAP Grant Update,” the County G project still seems quite fluid and undefined. There was a discussion about uses of grant funding and it was mentioned that parking is not included as an eligible cost so the parking lane on one side of G would not be included. The discussion was never about east or west side, simply “one side.”

Feb. 8, 2018 – Correspondence from Attorney VandeCastle
Attorney VandeCastle opined that the recent changes in state statute regarding limiting a municipality’s use of eminent domain for pedestrian ways are very ambiguous as they relate to sidewalks. He states that it there had been nothing to clarify the law either legislatively or by the Courts. He went on to advise Heise to have the Trustees adjourn into closed session to consider both condemnation and non-condemnation options for acquiring the property.
            
March 19, 2018 – Shipwrecked Construction Project
An email from Steve Harvey with WPS outlines the cost of raising power lines next to the building to keep the lines out of sight from our new second floor dining windows. He also presents an option of burying lines. Raising the poles was estimated to cost $36k, burying the lines would be $56k.

March 26, 2018 – Shipwrecked Construction Project
Email chain started between McMahon Engineers and Shipwrecked’s landscape designer, Terry Higgins, to analyze how the proposed sidewalk might fit in to Shipwrecked’s rebuild and subsequent landscaping.

April 6, 2018 – Village Office
Heise and Mike Simon exchange emails discussing coordination of sidewalk plan drawings, Shipwrecked landscaping, and being contacted by WPS to bury the power lines.

April 2018 – Shipwrecked Construction
Discussions are had by Shipwrecked owners and relayed to the village administrator that they would be open to entering into a limited permanent easement allowing the village to use the Shipwrecked property for the sidewalk if the village would assume the cost of burying the powerlines along the side of the building.

May 2, 2018 – PPW Meeting
Heise reports that WPS has contacted him regarding the opportunity to bury powerlines along the County G side of the Shipwrecked building. The committee discusses this opportunity and votes to recommend that the trustees drop the utilities between the two poles Shipwrecked had requested and to look into heading further down Highway G.

May 14, 2018 – Village Board Meeting
Heise reviews the minutes of the PPW committee meeting along with the recommendation that the trustees proceed with burying the lines. Heise stated that he will be meeting with the owners or the owner’s representatives regarding the sidewalk that the village is trying to obtain for the connectivity to the bird trail. The owners are interested in having this discussion. The village board then discussed removing more poles than requested. At this point, the village has a cost and knows that the limited version of the project can be completed in a short amount of time. The urgency of the project was also stressed to the trustees. The trustees authorized the village administrator to negotiate with WPS to determine the cost of removing additional poles. Heise stated that a special meeting could be held to review the estimates.

May 23, 2018 – Email from village administrator
An email from Heise stated, “At this point in time the Village President has elected to not call a special meeting to approve buried utilities adjacent to Shipwrecked.” This forces Shipwrecked to spend $36k that could have been avoided. The opportunity for collaboration and friendly negotiation has ceased.

Nov. 17, 2018 – PPW Meeting
The PPW Committee learns that the plans prepared for the County G sidewalk projected were denied funding from a TAP grant. County G plan and Highway 42 plan are split into separate projects to avoid triggering referendum requirements.

Dec. 10, 2018 Village Board
The Village Board approves proposals for McMahon to complete plans and for Moss & Associates to begin work on eminent domain requirements.

Feb. 6, 2019 PPW Meeting
County G plans come back into discussion for PPW. The plan presented by McMahon is similar to the last alternative that was not supported by the trustees. Heise reports that he has shared the plans with the Pollman’s, who are no longer interested in establishing an easement, so the village will need to explore other options. Discussion ensues among the committee about the merits of having the sidewalk on the east vs. west side of the street.

March 6, 2019 – PPW Meeting
Discussion continues regarding a sidewalk on the east vs. west side of County G.

April 9, 2019 – PPW Meeting
Northrop asked if in another month or so the committee will have an idea where the sidewalk will be going and Heise stated that he is not sure how fast the process will go. (This is the last time that sidewalk placement is mentioned in the minutes).

May 1, 2019 – PPW Meeting
Talk of condemnation and property acquisition begins in committee.

June 5, 2019 – PPW Meeting
Seven parking stalls added to plan on south limit of project.

Aug. 3, 2019 – PPW Meeting
Committee hears negative feedback from public about parking plans. They are not prepared to discuss at that meeting, but vow to address at September’s meeting.

Aug. 12, 2019 – Village Board Meeting
Adjacent property owners have been informed about new plans for County Highway G sidewalks and parking. They turn out to the Village Board meeting to express concerns and ask questions. They are made to feel like it is their fault for not staying current on these issues, even though as recently as April 9th committee members were asking which side of the street the sidewalk would be placed, and the new parking spots weren’t added until June 5th.

The Pollman’s and their attorney, Jon Pinkert, are present and speak in open session to their opposition of the sidewalk project as presented. The Village Board passes resolution 2019-05 issuing a relocation order for the right of way.

Aug. 29, 2019 – Correspondence from Atty Kalney
Attorney Kalney provides an opinion to Heise asserting that sidewalks are part of a street, and therefore condemnable. He goes on to concur with VandeCastle’s sentiment from over a year and a half ago and admits that his stance is not supported by definitive arguments, nor case law or even by example.

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