To exercise the power of eminent domain, Wisconsin municipalities must comply with Chapter 32 of the Wisconsin Statutes. However, the power of eminent domain cannot be used to acquire property to create a “pedestrian way.” In a recently decided case, Sojenhomer LLC v. Village of Egg Harbor (2021AP1589 March 14, 2023) (publication recommended), the Wisconsin Court of Appeals held that the Village of Egg Harbor violated that law when it attempted to condemn private property to install a sidewalk adjacent to a busy highway because the Court determined that a sidewalk is a “pedestrian way.”
Sojenhomer LLC owns real property nestled between County Highway G and State Highway 42. Over the years, the Village received numerous complaints that Highway G lacked adequate parking and was unsafe for pedestrians, who were forced to walk on the road. In 2015, the Village began to discuss improving the highway and hired a consultant to address deficiencies with the safety of the roadway. Together, the Village and the consultant developed a plan in which parking would be limited to one side of Highway G, a sidewalk would be installed on the side of the highway, and decorative street lighting would be installed on both sides.
Ultimately, the Village issued a relocation order and began the process to acquire the property by condemnation to complete the proposed improvements. The Village sent Sojenhomer a written offer to purchase .009 acres of right of way and requested a temporary limited easement of .0071 acres of Sojenhomer’s property. Sojenhomer rejected this offer and sent the Village an appraisal representing that the property was purportedly worth nearly three times the amount offered by the Village. In turn, the Village served Sojenhomer with a statutory jurisdictional offer for the property nearly doubling the amount originally offered. Unhappy with this offer, Sojenhomer filed suit seeking to enjoin the Village from acquiring the desired portion of its property through condemnation.
Wisconsin Court of Appeals Decision
Under Section 32.015 of the Wisconsin Statutes, municipalities may not condemn property “to establish or extend a recreational trail; a bicycle way, … a bicycle lane, … or a pedestrian way, as defined in s. 346.02 (8) (a).” The Wisconsin Court of Appeals identified the issue in the case as whether a sidewalk is a pedestrian way as the term is used in Sections 32.015 and 61.34(3)(b) (which restates the prohibition in Section 32.015).
The Court began its analysis by reviewing Section 346.02(8), which states the following:
(a) All of the applicable provisions of this chapter pertaining to highways, streets, alleys, roadways and sidewalks also apply to pedestrian ways. A pedestrian way means a walk designated for the use of pedestrian travel.
(b) Public utilities may be installed either above or below a pedestrian way, and assessments may be made therefor as if such pedestrian way were a highway, street, alley, roadway or sidewalk
The Court determined that a “walk designated for the use of pedestrian travel” is simple and broad, and does not otherwise limit where such a walk might be located. The Court then turned to Section 340.01(58) and Section 66.0907. In pertinent part, Section 340.01(58) provides:
“Sidewalk” means that portion of a highway between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, constructed for use of pedestrians.
And Section 66.0907(1) provides:
Part of street; obstructions. Streets shall provide a right-of-way for vehicular traffic and, where the council requires, a sidewalk on either or both sides of the street. The sidewalk shall be for the use of persons on foot, and no person may encumber the sidewalk with boxes or other material. The sidewalk shall be kept clear for the use of persons on foot.
The Court found that both sections define a sidewalk, in part, as a “walk” designated for “pedestrian travel.” Thus, the Court held that a sidewalk fell within the definition of a “pedestrian way.”
In doing so, the Court rejected the Village’s argument that, because Section 346.02(8) references both “sidewalks” and “pedestrian ways,” such an interpretation would create surplusage in that section. The Court explained that the general definition of a pedestrian way in Section 346.02(8) is broader than the definition of a sidewalk, because the definition of pedestrian way includes sidewalks (i.e. walks adjacent to the roadway for the use of pedestrian travel) and all other walks designated for pedestrian travel. In other words, all sidewalks are pedestrian ways, but not all pedestrian ways are sidewalks.
The Court stated that, under Section 346.02(8)(a), “[a]ll of the applicable provisions of [Chapter 346] pertaining to highways, streets, alleys, roadways, and sidewalks also apply to pedestrian ways.” It follows that if “sidewalks” were omitted from Section 346.02(8), provisions in Chapter 346 pertaining to sidewalks would not apply to pedestrian ways that are not sidewalks. Accordingly, the Court reasoned, the term “sidewalks” still serves a necessary function even though the term “pedestrian ways” includes sidewalks.
The Court reached a similar conclusion in interpreting Section 346.02(8)(b) which provides that “[p]ublic utilities may be installed either above or below a pedestrian way, and assessments may be made therefor as if such pedestrian way were a highway, street, alley, roadway, or sidewalk.” There, too, the Court found that the term “sidewalk” served the function of permitting a non-sidewalk pedestrian way to be treated as if it were a sidewalk for assessment purposes.
The Court further recognized that there is some overlap between a pedestrian way and a sidewalk, but that overlap does not render the language meaningless. Neither “sidewalk” nor “pedestrian way” could be omitted from Section 346.02(8)(a)-(b) without changing the meaning of that provision. Accordingly, the Court found there is no surplusage.
Finally, the Court rejected the Village’s argument that the Legislature would have explicitly included the term “sidewalk” in Section 32.015 had it wanted to restrict municipal authority to acquire property through condemnation to establish or extend a sidewalk. But the Court found this argument conflicted with the plain language of the statute. In addition, the Court stated, the argument ran against the interpretative rule that obligates the Court to “strictly construe a condemnor’s power” and “liberally construe condemnation statutes that favor landowners.”
Turning to the merits, the Court found that the Village had used its condemnation power in violation of Section 32.015. The undisputed facts demonstrated that the Village had sought to acquire the property to establish a sidewalk that, for the reasons explained above, fell within the statutory definition of a pedestrian way. Because condemnation cannot be used to acquire property for pedestrian ways under Section 32.015, the Village’s condemnation of Sojenhomer’s property for that purpose violated the law.
This decision clarifies the bounds of municipal condemnation authority. Municipalities cannot use condemnation to acquire property for sidewalks. Instead, municipalities will need to acquire such property through private agreement with individual property owners if the need arises.. However, this decision does not affect municipal authority to establish sidewalks within the municipality’s existing right of way. In addition, municipalities still have the authority to require the dedication of sidewalks through the land division process or as part of a negotiated agreement when such sidewalks are necessary and related to the development.
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