In Sojenhomer LLC v. Village of Egg Harbor (2024 WI 25), the court held that municipalities can use condemnation authority to acquire land to build a sidewalk within a road right-of-way, despite recently enacted statutory prohibitions on the use of condemnation to establish or extend a pedestrian way.
Facts
The Village of Egg Harbor developed a plan to address pedestrian safety and storm drainage issues on a local highway, including adding a sidewalk and making other improvements. The plan required the village to acquire strips of private property along the edge of the roadway. The village used its condemnation authority (also known as “eminent domain” powers) under Wis. Stat. §§ 32.05 and 61.34 to acquire the necessary property, including .009 acres belonging to Sojenhomer LLC.
Sojenhomer challenged the village’s right to take its property, noting that its specific piece of property was being taken for the sole purpose of building a sidewalk, which the village did not dispute. Sojenhomer argued that the village violated Wis. Stat. §§ 32.015 and 61.34(3)(b), which prohibit the use of condemnation to acquire property to establish or extend a “pedestrian way.” The circuit court agreed with the village’s argument that sidewalks are not pedestrian ways under the statute, while the appellate court reversed in favor of Sojenhomer.
Decision
In a 4-3 decision (Justice Dallet, joined by Justices Walsh Bradley, Karofsky, and Protasiewicz), the court held that “context and [legislative] history indicate” that the statutory definitions of “sidewalk” and “pedestrian way” are not the same and are in fact mutually exclusive categories. The court found that state law treats sidewalks as a feature of a roadway, as opposed to a pedestrian way like a skyway or walking path, which exists independently of a road.
The court noted that Wis. Stat. §§ 32.015 and 61.34(3)(b) prohibit municipalities from using condemnation to acquire property solely to establish or extend “a recreational trail; a bicycle way… a bicycle lane… or a pedestrian way,” but this list does not mention sidewalks. Therefore, because a sidewalk is always part of a roadway “and municipalities indisputably may condemn property to expand roads,” the village did not exceed its authority when it condemned Sojenhomer’s property.
Dissent
In a dissent, Chief Justice Ziegler (joined by Justices R. Bradley and Hagedorn) argued that “the plain language of the statute demonstrates that the term ‘pedestrian way’ is broadly defined, and includes sidewalks.” Rather than view “pedestrian way” and “sidewalk” as mutually exclusive definitions, the dissent contended that “the plain meaning of the statutes reveals that all sidewalks are pedestrian ways, but that not all pedestrian ways are sidewalks.” Therefore, according to the dissent, the village exceeded its condemnation authority when it acquired Sojenhomer’s property.