A Municipality’s Power to Condemn: A Sidewalk and A Pedestrian Way Walk Into A Bar…
A “pedestrian way” is defined in the statutes as “a walk designated for the use of pedestrian travel.” (Wis. Stat., § 346.02(8)(a)). However, is a sidewalk a pedestrian way? The Wisconsin Supreme Court, in a case of first impression, answered that question “NO.”
In the case of Sojenhomer LLC v. Village of Egg Harbor, the Supreme Court held, in a 4-3 decision, that the definition of “pedestrian way” does not include “sidewalks” for the purpose of determining the scope of a village’s power to condemn and acquire private property for a public road. Accordingly, the Village of Egg Harbor had the power to acquire property from Sojenhomer LLC to create a sidewalk.
As part of a roadway project, the Village sought to acquire 0.009 acres of Sojenhomer’s property to create a sidewalk. Sojenhomer operates the Shipwrecked Brew Pub and used that .009 acres for parking. Sojenhomer filed a lawsuit challenging the Village’s right to take its property, arguing that the Village could not condemn its property for a pedestrian way because it was prohibited from doing so by Sections 32.015 and 61.34(3)(b) of the Wisconsin Statutes. The trial court concluded that the Village had the power to acquire Sojenhomer’s property for a sidewalk, but the Court of Appeals disagreed.
On review by the Supreme Court, the Court was tasked to decide whether sidewalks are “pedestrian ways” as that term is defined in Wis. Stat. § 346.02(8)(a). If, on the one hand, sidewalks are pedestrian ways, the Village would be prohibited from acquiring Sojenhomer’s property to construct one. If, on the other hand, sidewalks are not pedestrian ways, the Village had the power to condemn the property and construct a sidewalk on it.
The Supreme Court held that sidewalks are not pedestrian ways and, therefore, the Village had the power to acquire Sojenhomer’s property. In reaching its conclusion, the Court looked at the history of the statutes and concluded that “sidewalks” and “pedestrian ways” had separate, non-overlapping definitions. “Sidewalks” are defined as being part of an adjoining highway or roadway while “pedestrian ways” are “walks designated for the use of pedestrian travel.” The Court summed up the distinction between the two definitions as follows: “Whereas sidewalks are and always must be part of the adjoining highway, a pedestrian way may be created by designating a path or road as such.”
Many road-widening projects in which the government uses its power of eminent domain to acquire private property include the use of that property for a sidewalk. Before this case, there had been the lingering issue of whether the condemning authority had the right to include a sidewalk in the roadway, even though most people would agree that sidewalks serve the public interest. The Supreme Court’s decision seems to echo the sentiment that the Village should have the power to condemn private property to create a sidewalk for the safety of the public, but the 4-3 decision of the Court, containing a robust dissent, could give the impression that the majority is legislating from the bench rather than simply interpreting the statutes.
Regardless, this case resolved an unanswered question – is a sidewalk a pedestrian way? Accordingly, now municipalities (and other governmental entities) have clarity that their eminent domain power includes the right to acquire private property to create a sidewalk.
