A dispute between Egg Harbor and a popular restaurant has just been settled by the Wisconsin Supreme Court
EGG HARBOR - A sidewalk is not the same as a pedestrian way, the Wisconsin Supreme Court essentially ruled Wednesday, July 19, in a legal dispute between the village of Egg Harbor and the site of one of its most popular restaurants and craft brewpubs.
In a 4-3 vote split along ideological lines, the court's liberal-leaning majority ruled that the village was within its rights to condemn a portion of the Shipwrecked Brewpub property to build a sidewalk on it. The Supreme Court ruling overturned an appeals court ruling in March of 2023 that sided with Sojenhomer LLC, the property owner.
The main issue the justices considered was if a sidewalk falls under the umbrella of being a "pedestrian way." State statues do not allow condemnation of property by a municipality to make a pedestrian way, such as a walking trail or bicycle lanes, but municipalities can condemn properties to build a road safety feature.
Sojenhomer's contention was that sidewalks are pedestrian ways, which State Statute 346.02(8)(a) defines as "a walk designated for the use of pedestrian travel." However, Egg Harbor claimed that sidewalks are considered as part of the road according to State Statute 340.01(58), which says, "'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," thus opening the door for condemnation.
The sidewalk is on County G next to Shipwrecked as part of a safety improvement project around the road's intersection with State 42, where the restaurant and brewery is located. Previously, pedestrians had to walk on the narrow road that could see heavy traffic and vehicle parking at peak times.
The village sought to buy a sliver of the Shipwrecked property, about 392 square feet (0.009 acres), bordering County G so it could build the sidewalk. But after two offers were rejected by Sojenhomer as inadequate and not coming close to the appraised value, Egg Harbor condemned the property in 2019 so it could proceed with the sidewalk.
Sojenhomer sued in 2020, but Door County Circuit Court Judge David Weber ruled in favor of the village a year later, agreeing with Egg Harbor's position that state statutes define "sidewalk" and "pedestrian way" distinctly.
Sojenhomer appealed, and in March of 2023 the District 3 Court of Appeals overturned Weber's decision and ruled in Sojenhomer's favor. The judges wrote in their decision that "the general definition of a pedestrian way in (state statute) is broad and plainly includes sidewalks because a sidewalk is a 'walk designated for the use of pedestrian travel.'"
Within a month of the appeals court decision, Egg Harbor filed a petition with the state Supreme Court to reconsider.
Writing for the majority, Justice Rebecca Dallet noted all parties agreed that if sidewalks were to be considered as pedestrian ways by statute, the village would have been prohibited from condemning the property to build the sidewalk.
However, Dallet cited the language in 346.02(8)(a) that says, "All of the applicable provisions of this chapter pertaining to highways, streets, alleys, roadways and sidewalks also apply to pedestrian ways" and similar language in 346.02(8)(b) as an indication that sidewalks are not the same as pedestrian ways.
She also noted that the state statutes that ban condemnation of property to create a pedestrian way specifically mention recreational trails, bicycle ways and pedestrian ways but not sidewalks, again emphasizing that sidewalks are defined by the state as being part of the roadway.
"Given that, we conclude that the definition of 'pedestrian way' in 346.02(8)(a) does not include sidewalks, and accordingly hold that the limitations on condemnation in (the statutes) did not prohibit the village from condemning Sojenhomer's property to build a sidewalk," Dallet wrote. She was joined in the majority by justices Ann Walsh Bradley, Jill Karofsky and Janet Protasiewicz.
In her dissent, Justice Annette Ziegler wrote that the statute's definition of "pedestrian way" does include sidewalks because they're meant for pedestrians even if they are part of the roadway. She also wrote that the majority decided that sidewalks are not pedestrian ways without more firmly establishing what is a pedestrian way. Joining Ziegler in dissent were fellow conservative-leaning justices Rebecca Bradley and Brian Hagedorn.
"The plain language of the statute demonstrates that the term 'pedestrian way' is broadly defined, and includes sidewalks," Ziegler wrote. "A sidewalk – that portion of the highway created for the travel of persons on foot – is clearly a subset of pedestrian ways – walks set apart or assigned for the use of pedestrian travel. It is a straightforward, common sense interpretation of the statutory language that a 'walk designated for the use of pedestrian travel' necessarily includes that part of the highway 'constructed for the use of pedestrians' and intended 'for the use of persons on foot.'
"… A closer look at the plain meaning of the statutes reveals that all sidewalks are pedestrian ways, but that not all pedestrian ways are sidewalks. As a result, the village cannot condemn this property."
Contact Christopher Clough at 920-562-8900 or [email protected].
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This article originally appeared on Green Bay Press-Gazette: Wisconsin Supreme Court sides with Egg Harbor in sidewalk controversy
