Sojenhomer LLC v. Village of Egg Harbor

2023 WI APP 20

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP1589

†Petition for Review Filed

Complete Title of Case:

SOJENHOMER LLC,

†PLAINTIFF-APPELLANT,

V.

VILLAGE OF EGG HARBOR,

DEFENDANT-RESPONDENT.

Opinion Filed: March 14, 2023
Submitted on Briefs: March 15, 2022
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiff-appellant, the cause was submitted on the
briefs of Jon R. Pinkert and Tyler D. Pluff of Pinkert Law Firm LLP,
Sturgeon Bay.

Respondent
ATTORNEYS: On behalf of the defendant-respondent, the cause was submitted on the
brief of Ashley C. Lehocky of Town Counsel Law & Litigation, LLC,
Kaukauna.

A nonparty brief was filed by Joshua L. Kaul, attorney general, and
Clayton P. Kawski, assistant attorney general, for the Wisconsin
Department of Transportation
2023 WI App 20

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 14, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP1589 Cir. Ct. No. 2020CV101

STATE OF WISCONSIN IN COURT OF APPEALS

SOJENHOMER LLC,

PLAINTIFF-APPELLANT,

V.

VILLAGE OF EGG HARBOR,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Door County:
DAVID L. WEBER, Judge. Reversed and cause remanded for further proceedings.

Before Stark, P.J., Hruz and Gill, JJ.

¶1 HRUZ, J. Sojenhomer LLC, appeals an order granting the Village of
Egg Harbor’s motion for summary judgment on Sojenhomer’s claim pursuant to
No. 2021AP1589

WIS. STAT. § 32.015 (2021-22).1 That statute provides that property may not be
acquired by condemnation to establish, among other things, a “pedestrian way.” See
id. WISCONSIN STAT. § 61.34(3)(b) similarly states that a village board may not use
the power of condemnation to acquire property for the purpose of establishing a
“pedestrian way.”

¶2 The Village sought to condemn part of Sojenhomer’s property to
establish a sidewalk, and the circuit court concluded, as a matter of law, that WIS.
STAT. § 32.015 did not prohibit the Village from doing so. In reaching that
conclusion, the court interpreted the definition of “pedestrian way” in WIS. STAT.
§ 346.02(8)(a), and it determined that a “pedestrian way” is distinct from a
“sidewalk” because the two terms are used together in both § 346.02(8)(a) and (b);
thus, the terms must be interpreted to have different meanings in order to avoid
surplusage.

¶3 Sojenhomer argues on appeal that a sidewalk is a “pedestrian way” as
that term is used in WIS. STAT. §§ 32.015 and 61.34(3)(b). We agree. The general
definition of a pedestrian way in WIS. STAT. § 346.02(8)(a) is broad and plainly
includes sidewalks because a sidewalk is a “walk designated for the use of
pedestrian travel.” See id. Although the term sidewalk and the term pedestrian way
are used together in both § 346.02(8)(a) and (b), we conclude that the two terms do
not create surplusage in the statutes because each term has a textual function and
neither term could be omitted without changing the meaning of those provisions.

¶4 We also conclude that the undisputed facts demonstrate that the
Village used the power of condemnation to establish a pedestrian way, in violation

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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of WIS. STAT. §§ 32.015 and 61.34(3)(b). Indeed, the Village condemned part of
Sojenhomer’s property with a plan to construct a sidewalk—designated for
pedestrian travel—on that property. The Village’s installation of a street light on
the condemned property and the Village’s desire to address safety concerns by
installing a sidewalk do not provide a basis for the Village to condemn
Sojenhomer’s property in violation of §§ 32.015 and 61.34(3)(b). We therefore
reverse the circuit court’s grant of summary judgment to the Village and remand for
further proceedings consistent with this opinion.

BACKGROUND

¶5 Sojenhomer owns a parcel of real property nestled between County
Highway G and State Highway 42 where the two roads converge in the Village of
Egg Harbor. Sojenhomer’s property is home to the Shipwrecked Brew Pub and
Restaurant. Beginning in about 2015, the Village began to discuss improving the
safety of Highway G, which largely focused on “installing a sidewalk.” The Village
had received numerous complaints regarding the road, including that the road “was
too narrow” and lacked both adequate parking and “a safe place for pedestrians to
walk.” In particular, pedestrians traveling by foot were “forced to utilize the road”
where Highway G abutted the west side of Sojenhomer’s property.

¶6 The Village subsequently retained McMahon Associates to determine
what improvements could be made to Highway G and Highway 42. Michael Simon,
a civil engineer with McMahon Associates, summarized “several deficiencies” with
Highway G in a 2016 email to a senior executive with Wisconsin Public Service.
Simon noted that the then-existing road had “no discernable ditches or storm sewer,”
which “results in on-street flooding during large rain events as well as icing issues
in the winter months.” Simon also noted that “[t]here is no continuous sidewalk for

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pedestrians” and that pedestrians must share the road with motor vehicles and
bicycles. “During peak season,” Simon explained, “the effective width of the
roadway is narrowed due to parking on both sides of the roadway which further
reduces the area available for pedestrians.” In addition, Simon stated that
“[p]edestrians primarily utilize the west side” of Highway G, and, in order to access
the nearby “Bird Trail,” they must cross Highway G at a curve in the road where
both pedestrians and vehicles have limited visibility. Simon said all of these
concerns were “safety issue[s]” that the Village wanted to correct.

¶7 The Village, in conjunction with McMahon Associates, developed a
plan to address these deficiencies. 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. Although the County had
planned to mill and resurface Highway G in 2018 or 2019, the County delayed 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.

¶8 In February 2020, the Village sent Sojenhomer a “written offer 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, which valued Sojenhomer’s
loss at nearly three times the amount offered by the Village. Sojenhomer then sent

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that appraisal to the Village. The Village, in turn, served Sojenhomer a
jurisdictional offer nearly doubling the amount of money originally offered, but
Sojenhomer rejected that offer. See WIS. STAT. § 32.05(3).

¶9 In August 2020, Sojenhomer filed this action seeking to enjoin the
Village from acquiring the desired portion of Sojenhomer’s property through
condemnation.2 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.”

¶10 The Village filed an answer to Sojenhomer’s complaint and then
immediately filed a motion for judgment on the pleadings. The Village argued,
among other things, that WIS. STAT. § 32.015 does not prohibit a municipality from
condemning property to install a sidewalk because a sidewalk is not a “pedestrian
way,” as that term is used in § 32.015. In response, Sojenhomer filed a motion
requesting that the circuit court strike both the Village’s answer and its motion for
judgment on the pleadings and that the court enter a default judgment, arguing that
the Village had failed to file its answer within the statutory deadline.

¶11 The circuit court held a hearing on the motions and concluded that the
Village had not filed a timely answer. Nonetheless, the court determined that it
could not enter a default judgment unless Sojenhomer’s complaint had stated a

2
Although not explicitly alleged in the complaint or discussed by the parties in their
appellate briefing, Sojenhomer’s complaint appears to fall under WIS. STAT. § 32.05(5), which
allows a property owner to commence an action “contest[ing] the right of the condemnor to
condemn the property described in the jurisdictional offer.” See id.

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No. 2021AP1589

claim upon which relief could be granted. See Davis v. City of Elkhorn, 132 Wis. 2d
394, 398-99, 393 N.W.2d 95 (Ct. App. 1986).

¶12 When considering whether Sojenhomer’s complaint had properly
stated a claim, the circuit court recognized that the pertinent issue, as framed by the
parties, was whether a “sidewalk” constitutes a “pedestrian way” for purposes of
applying WIS. STAT. § 32.015. The court noted that a sidewalk is considered part
of a highway or street under WIS. STAT. §§ 340.01(58) and 66.0907, respectively,
and that a sidewalk is “within the road right of way.” In contrast, the court observed
that a pedestrian way “is a walk for pedestrians, but it is not part of any highway or
street.” The court therefore determined that “no sidewalks are pedestrian ways and
no pedestrian ways are sidewalks. This is true even though both sidewalks and
pedestrian ways are walks for use of pedestrian travel.”

¶13 The circuit court further explained that it had

to construe statutes to not render any part of them
superfluous. To conclude that sidewalks are mere subsets of
pedestrian[] ways would be to render the language about
sidewalks in [WIS. STAT. §] 346.02(8)(a)—and (b), by the
way—superfluous. The fact that this section uses the term
“sidewalks” and “pedestrian ways” implies that one is not
simply a subset of the other, but that the two are qualitatively
different from one another. If they were the same, there
would be no reason to mention the word “[sidewalks]” at
all.[3] They could have just mentioned pedestrian ways.

The court concluded that WIS. STAT. § 32.015 “does not prohibit condemnation
under the undisputed facts” nor does it “prohibit a Village from acquiring land to
expand a highway,” including one that will contain a sidewalk. Thereafter, the court

3
The circuit court actually said “streets” in this sentence, but it appears to have misspoken
in this regard. Based on the context of the court’s discussion, we believe the court intended to say
“sidewalks.”

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No. 2021AP1589

allowed the parties to submit further briefing on the procedural posture of the case,
but the court later concluded that Sojenhomer’s complaint must be dismissed for
failing to state a claim upon which relief could be granted.

¶14 Before the circuit court entered an order dismissing Sojenhomer’s
complaint, Sojenhomer filed an amended complaint. The court, in turn, ordered the
Village to file an answer to the amended complaint and set a deadline for dispositive
motions. The Village subsequently filed an answer, and the parties commenced
discovery.

¶15 As part of that discovery, Sojenhomer deposed Simon. Simon
testified that “the primary reason for” the Highway G project was to improve
“[w]alkability,” but the project also attempted to address “drain problems and other
issues.” Using a map that depicted the Village’s plans for the Highway G project,
Simon described some of the intended improvements around Sojenhomer’s
property. In particular, Simon explained that the yellow highlighting on the map
depicted the part of the proposed sidewalk located “within the existing right-of-
way.” Simon noted that the edge of the yellow highlighting “would be the back of
[the] curb” and that none of the condemned property contained any part of the curb
or gutter. Simon further testified that the pink highlighting on the map represented
“the part of the sidewalk that is on the condemned property” and that the green
highlighting on the map represented the part of the condemned property “needed”
to install street lighting and a conduit for the electrical wires to those lights. Finally,
Simon stated that the orange highlighting on the map was a temporary limited

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easement “between the proposed sidewalk and the existing building” that would be
“5-inch concrete sidewalk.”4

¶16 When asked whether there were any “highway purposes” for
acquiring the green highlighted area—other than for the street lighting—Simon
stated, “There’s a little more room for snow to go, I guess. That would be about the
only other reason for it.” Simon immediately acknowledged, however, that
Sojenhomer’s property was not being condemned to increase the available space for
snow. Simon also testified that the location of the street light in the green
highlighted area was influenced by the need to create sufficient space for pedestrians
to walk on the sidewalk. Simon conceded that “[i]f not for the sidewalk, … the
Village would not have needed to condemn … the property for the light pole” and
that the Village “would have designed around the available right-of-way.” After
summarizing Simon’s testimony, Sojenhomer’s counsel asked Simon whether there
were “[a]ny other highway purposes for which this property was condemned[.]”
Simon responded: “No, just a little more room for pedestrians to walk.”

¶17 The parties later filed cross-motions for summary judgment, and, in
an oral ruling, the circuit court granted the Village’s motion. The court again
recognized that the relevant issue was whether a sidewalk constitutes a pedestrian
way. 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—“for the same reasons” discussed in its prior oral

4
For reference, the yellow highlighted area is the closest to Highway G, followed by the
pink, green and orange highlighted areas, respectively. As noted, the yellow highlighted area was
already part of the existing right-of-way, but the pink, green and orange highlighted areas make up
the portion of land that the Village acquired through condemnation.

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ruling—that “a sidewalk is not a pedestrian way,” and, therefore, WIS. STAT.
§ 32.015 did not prohibit the Village from condemning Sojenhomer’s property.

¶18 Sojenhomer now appeals. Additional facts will be provided as
necessary below.

DISCUSSION

¶19 We review a circuit court’s decision to grant a motion for summary
judgment de novo, applying the same methodology as the circuit court. See Quick
Charge Kiosk LLC v. Kaul, 2020 WI 54, ¶9, 392 Wis. 2d 35, 944 N.W.2d 598.
Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶20 This appeal presents an issue of first impression. Specifically, we
must determine whether a sidewalk is a “pedestrian way,” as that term is used in
WIS. STAT. §§ 32.015 and 61.34(3)(b) and as it is defined in WIS. STAT.
§ 346.02(8)(a).5 To date, no Wisconsin appellate court has interpreted or applied
the meaning of the term “pedestrian way” in any of these three statutes. 6 The
interpretation and application of a statute are questions of law that we review
de novo. Quick Charge Kiosk, 392 Wis. 2d 35, ¶9.

5
Several other statutes contain similar language restricting condemnation to establish or
extend a pedestrian way. See WIS. STAT. §§ 27.01(2)(a), 27.019(10), 27.05(3), 27.065(1)(a),
27.08(2)(b)-(c), 59.52(6)(a), 60.782(2)(d), 62.22(1)(b), 62.23(17)(am), 85.09(2)(a).
6
WISCONSIN STAT. § 32.015 along with the analogous language in other statutory
provisions, see supra note 5, were enacted in 2017. See 2017 Wis. Act 59.

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¶21 When interpreting condemnation statutes, such as WIS. STAT.
§§ 32.015 and 61.34(3), we strictly construe the condemnor’s power and the
exercise thereof because the power of eminent domain is “extraordinary.” Standard
Theatres v. DOT, 118 Wis. 2d 730, 742-43, 349 N.W.2d 661 (1984) (citation
omitted); see also Spiegelberg v. State, 2006 WI 75, ¶31, 291 Wis. 2d 601, 717
N.W.2d 641. “[T]he rule of strict construction is intended to benefit the owner
whose property is taken against his or her will.” Standard Theatres, 118 Wis. 2d
at 743. To that end, statutory provisions favoring the property owner are liberally
construed. Id.

¶22 “[S]tatutory interpretation ‘begins with the language of the statute.’”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (citation omitted). “We give statutory language ‘its common,
ordinary, and accepted meaning, except that technical or specially-defined words or
phrases are given their technical or special definitional meaning.’” Town of Rib Mt.
v. Marathon County, 2019 WI 50, ¶9, 386 Wis. 2d 632, 926 N.W.2d 731 (citation
omitted). We also interpret statutory language “in the context in which it is used;
not in isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable results.”
Id. (citation omitted). Where possible, we interpret statutory language in such a
manner “to give reasonable effect to every word, in order to avoid surplusage.”
Kalal, 271 Wis. 2d 633, ¶46.

¶23 If the meaning of the statutory language is plain and unambiguous,
our inquiry ordinarily ends, and “we need not ‘consult extrinsic sources of
interpretation, such as legislative history.’” Milwaukee Dist. Council 48 v.
Milwaukee County, 2019 WI 24, ¶11, 385 Wis. 2d 748, 924 N.W.2d 153 (citation
omitted). A statute is not ambiguous simply because “there is a disagreement about

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the statutory meaning.” Kalal, 271 Wis. 2d 633, ¶47. Rather, a statute is ambiguous
if its “language reasonably gives rise to different meanings.” Id. (citation omitted).

I. The meaning of “pedestrian way” in WIS. STAT. §§ 32.015 and 61.34(3)(b)

¶24 A village board has the authority to acquire property through
condemnation to construct and establish streets. See WIS. STAT. § 61.34(3)(a)
(“Condemnation shall be as provided by [WIS. STAT.] ch. 32.”). A village board’s
ability to acquire property through condemnation, however, is subject to several
limitations. See, e.g., WIS. STAT. §§ 32.015, 61.34(3)(b). In particular, § 32.015
provides that “[p]roperty may not be acquired by condemnation to establish or
extend a recreational trail; a bicycle way, as defined in [WIS. STAT. §] 340.01(5s); a
bicycle lane, as defined in [§] 340.01(5e); or a pedestrian way, as defined in [WIS.
STAT. §] 346.02(8)(a).” Likewise, § 61.34(3)(b) imposes similar limitations
directly on a village board’s condemnation powers, including its power to acquire
property for streets. See § 61.34(3)(a) (“Except as provided in par. (b), the village
board may acquire property … for … streets ….” (emphasis added)).

¶25 As noted earlier, the primary issue in this case is whether a sidewalk
is a “pedestrian way” as that term is used in both WIS. STAT. §§ 32.015 and
61.34(3)(b). Because both of those statutes employ the definition of “pedestrian
way” provided in WIS. STAT. § 346.02(8)(a), we shift our focus to that statute.

¶26 WISCONSIN STAT. § 346.02(8)(a) defines a “pedestrian way” as “a
walk designated for the use of pedestrian travel.” This plain language is both simple
and broad, and it does not place any limitations on where such “a walk” for
“pedestrian travel” might be located. Thus, a sidewalk appears to fall within this
general definition because a sidewalk is a “walk” designated for “pedestrian travel.”
See WIS. STAT. § 340.01(58) (“‘Sidewalk’ means that portion of a highway between

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the curb lines, or the lateral lines of a roadway, and the adjacent property lines,
constructed for use of pedestrians.”); WIS. STAT. § 66.0907(1) (“[A] sidewalk [may
be placed] on either or both sides of [a] street. The sidewalk shall be for the use of
persons on foot ….”); Sidewalk, WEBSTER’S THIRD NEW INT’L DICTIONARY
(unabr. 1993) (defining “sidewalk” as “a walk for foot passengers usu[ally] at the
side of a street or roadway”).

¶27 The Village nevertheless argues—consistent with the circuit court’s
decision—that a sidewalk cannot constitute a pedestrian way because such an
interpretation would create surplusage in WIS. STAT. § 346.02(8). The Village
points out that § 346.02(8)(a) contains more language than simply the general
definition of “pedestrian way” and that this other language references both
“sidewalks” and “pedestrian ways.” Based on those references, the Village insists
that a sidewalk must be different from a pedestrian way because “[t]here is no way
to reconcile the use of both terms within [§ 346.02(8)] without creating surplusage.”

¶28 WISCONSIN STAT. § 346.02(8) provides in relevant part:

(a) All of the applicable provisions of this chapter pertaining
to highways, streets, alleys, roadways and sidewalks also
apply to pedestrian ways.…

(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.

(Emphasis added.) Thus, the Village is correct that § 346.02(8) employs both the
term “sidewalk” and the term “pedestrian way” in two separate sentences and in

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close proximity to one another.7 Although, in certain circumstances, the use of two
similar terms in the same sentence might suggest the terms have wholly distinct
meanings, we conclude that these provisions contain no surplusage if the term
pedestrian way is interpreted to include sidewalks.

¶29 As Sojenhomer correctly observes, the general definition of
pedestrian way in WIS. STAT. § 346.02(8)(a) is broader than the definition of a
sidewalk because a pedestrian way can—but need not—be adjacent to a roadway.
In other words, the term pedestrian way includes both: (1) sidewalks—i.e., walks
adjacent to a roadway for the use of pedestrian travel, see WIS. STAT. § 340.01(58);
and (2) all other walks designated for pedestrian travel that are not adjacent to a
roadway, such as a walking path through a parcel of property.

¶30 With this understanding in mind, it becomes clear that interpreting the
term “pedestrian way” to include a “sidewalk” does not create surplusage in WIS.
STAT. § 346.02(8)(a). Section 346.02(8)(a) provides in plain terms that “[a]ll of the
applicable provisions of [WIS. STAT. ch. 346] pertaining to highways, streets, alleys,
roadways and sidewalks also apply to pedestrian ways.” Thus, under para. (a),
provisions pertaining to sidewalks in ch. 346 also apply to all pedestrian ways.8
Because the term pedestrian ways is broader than the term sidewalks, the inclusion

7
Sojenhomer argues that the first sentence of WIS. STAT. § 346.02(8)(a) “cannot be
imposed onto [WIS. STAT. §] 32.015” because the first sentence applies only within WIS. STAT.
ch. 346. In other words, Sojenhomer suggests that we cannot consider the first sentence of
§ 346.02(8)(a) when interpreting the meaning of “pedestrian way.” We disagree. Although the
first sentence of § 346.02(8)(a) refers to “provisions of this chapter,” nothing in that sentence limits
our ability to consider it when interpreting the term “pedestrian way.” Furthermore, we must
interpret “pedestrian way” in the context in which it is used. See Town of Rib Mt. v. Marathon
County, 2019 WI 50, ¶9, 386 Wis. 2d 632, 926 N.W.2d 731. Both the first sentence of
§ 346.02(8)(a) as well as § 346.02(8)(b) provide relevant context for determining the meaning of
“pedestrian way.”
8
We note that WIS. STAT. ch. 346 contains several provisions that specifically pertain to
sidewalks. See, e.g., WIS. STAT. §§ 346.804, 346.805, 346.807.

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of the term sidewalks in para. (a) makes the provisions pertaining to sidewalks in
ch. 346 applicable to all pedestrian ways that are not sidewalks. Put differently, if
the word “sidewalks” were omitted from para. (a), then the provisions pertaining to
sidewalks in ch. 346 would not apply to pedestrian ways that are not sidewalks.
Accordingly, the term “sidewalks” still serves a necessary function even though the
term “pedestrian ways” includes sidewalks.

¶31 For similar reasons, interpreting the term pedestrian ways to include
sidewalks does not create surplusage in WIS. STAT. § 346.02(8)(b).
Section 346.02(8)(b) states 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.” Paragraph (b) therefore
allows assessments to be made for the purpose of installing public utilities above or
below a pedestrian way as if the pedestrian way were a sidewalk. Again, because
the term pedestrian way is broader than the term sidewalk, the term sidewalk in
para. (b) serves the purpose of permitting a pedestrian way that is not a sidewalk to
be treated as if it were sidewalk for assessment purposes. Like para. (a), the term
sidewalk in para. (b) could not be omitted without changing the meaning of the
statutory language.

¶32 Of course, we recognize that there is some overlap in WIS. STAT.
§ 346.02(8) by interpreting the term pedestrian way to include sidewalks, but such

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overlap does not create surplusage or render any language meaningless.9 See State
v. Derenne, 102 Wis. 2d 38, 46-47, 306 N.W.2d 12 (1981) (concluding that
although the court’s “construction of [the terms ‘marijuana’ and
‘tetrahydrocannabinols’ in WIS. STAT. §] 161.14(4) … results in some ‘statutory
overlap,’” the court’s “construction does not render the term ‘marijuana’
meaningless”). Indeed, as just explained, neither the term sidewalk nor the term
pedestrian way could be omitted from the first sentence of § 346.02(8)(a) or from
para. (b) without changing the meaning of those provisions. Accordingly, each term
has a textual function in those sentences, such that neither term is mere surplusage.10
See Milwaukee Dist. Council 48, 385 Wis. 2d 748, ¶17 (“Neither [term] is left
without a textual function and every word is given meaning.”).

¶33 The Village also argues that if the legislature had intended to prohibit
the use of condemnation for acquiring property to establish or extend a sidewalk, it

9
One need look no further than WIS. STAT. § 346.02(8) to see that statutes sometimes
contain terms that, by definition, overlap in some manner. Both § 346.02(8)(a) and (b) use the
terms “highway,” “street” and “alley” in the same sentence. A “highway” is defined as “all public
ways and thoroughfares and bridges on the same.” WIS. STAT. § 340.01(22). “Street,” in turn, is
defined as “every highway within the corporate limits of a city or village except alleys.”
Sec. 340.01(64) (emphasis added). Likewise, “alley” is defined as “every highway within the
corporate limits of a city, village or town primarily intended to provide access to the rear of property
fronting upon another highway and not for the use of through traffic.” Sec. 340.01(2) (emphasis
added). Therefore, both a “street” and an “alley” are a “highway.”
10
The Village’s interpretation of “pedestrian way” suggests that a pedestrian way can
never be adjacent to a roadway because it would then be a “sidewalk.” This interpretation,
however, appears to conflict with another statute that employs WIS. STAT. § 346.02(8)(a)’s
definition of “pedestrian way” in the context of highway construction. See WIS. STAT.
§ 84.01(35)(a)2., (b). Pursuant to § 84.01(35)(b), the Department of Transportation must, except
in certain circumstances, “give due consideration to establishing bikeways and pedestrian ways in
all new highway construction and reconstruction projects funded in whole or in part from state
funds or federal funds appropriated under [WIS. STAT. §] 20.395 or 20.866.” The use of the term
“pedestrian way” in this statute suggests that a pedestrian way can be part of a highway.

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would have explicitly included the term sidewalk in WIS. STAT. § 32.015. We
disagree. As noted earlier, the general definition of “pedestrian way” is broad and
plainly includes sidewalks. The legislature therefore had no need to include the
term sidewalk in § 32.015 because the inclusion of the term pedestrian way already
made § 32.015 applicable to sidewalks.11

¶34 Moreover, the Village provides no basis for us to “assume” the
legislature would have explicitly included the term sidewalk in WIS. STAT. § 32.015
if it intended to impose § 32.015 on sidewalks. Importantly, such an assumption is
contrary to our interpretative rules for a condemnation statute. In particular, we
must strictly construe a condemnor’s power, and we must liberally construe
condemnation statutes that favor landowners. See Standard Theatres, 118 Wis. 2d
at 742-43. Here, § 32.015 favors landowners because it prohibits the use of
condemnation for acquiring a landowner’s property to establish or extend certain
physical conditions, such as a pedestrian way. See § 32.015. We must therefore
liberally construe, albeit within reason, the meaning of the term “pedestrian way”
in that statute. See Standard Theatres, 118 Wis. 2d at 743.

¶35 The Village also appears to argue that because a sidewalk is, by
statutory definition, part of a highway, WIS. STAT. § 32.015 does not prohibit the
use of condemnation to establish or extend a sidewalk because the sidewalk would,
by definition, widen the existing highway, which is generally permissible. See WIS.
STAT. §§ 32.05 and 61.34(3)(a). The Village therefore suggests that it could use the

11
We recognize that some of the enumerated items in WIS. STAT. § 32.015 could
conceivably overlap. For instance, certain walking paths might meet the definition of both a
“recreational trail” and a “pedestrian way.” Unlike sidewalks, however, nothing in the statutory
language suggests that all recreational trails would qualify as a “pedestrian way.”

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power of condemnation to expand Highway G and include a sidewalk in that
expansion.

¶36 To the extent the Village is attempting to argue that its power of
condemnation for highways and streets is unconstrained by WIS. STAT. §§ 32.015
and 61.34(3)(b), we disagree. As we explained earlier, a village board’s power to
use condemnation to establish a street or a highway is limited by both of those
statutes. See § 61.34(3)(a) (“Except as provided in par. (b), the village board may
acquire property, real or personal, within or outside the village,
for … streets …. Condemnation shall be as provided by [WIS. STAT.] ch. 32.”
(emphasis added)).

¶37 Furthermore, if the Village were correct and WIS. STAT. §§ 32.015
and 61.34(3)(b) did not constrain a village board’s condemnation powers with
regard to some highways and streets, then at least part of those statutes would be
rendered superfluous. Sections 32.015 and 61.34(3)(b) prohibit a village board
from using the power of condemnation to establish “a bicycle lane, as defined in
[WIS. STAT. §] 340.01(5e).” A bicycle lane is defined as “that portion of a roadway
set aside by the governing body of any … village … for the exclusive use of
bicycles … and so designated by appropriate signs and pavement markings.”
Sec. 340.01(5e). A bicycle lane is therefore always a part of a roadway, which is
always part of a highway. See § 340.01(54) (“‘Roadway’ means that portion of a
highway between the regularly established curb lines or that portion which is
improved, designed or ordinarily used for vehicular travel, excluding the berm or
shoulder.” (emphasis added)). Although the width of a highway would increase if
a bicycle lane were established or extended on the highway, §§ 32.015 and
61.34(3)(b) plainly prohibit a village board from doing so. Accordingly, we reject

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the Village’s suggestion that its condemnation powers are not limited under
§ 32.015 or § 61.34(3)(b) if the Village is “widening” a highway or street.

¶38 In sum, we conclude that the term “pedestrian way” in WIS. STAT.
§ 32.015 includes sidewalks because a sidewalk is a walk designated for pedestrian
travel, see WIS. STAT. §§ 340.01(58) and 66.0907(1), and it therefore falls within
the general definition of “pedestrian way” in WIS. STAT. § 346.02(8)(a).12 Such an

12
Sojenhomer argues that WIS. STAT. § 32.015’s legislative history also supports its
interpretation of that statute. Sojenhomer points out that there were bills introduced into both the
assembly and senate recommending that § 32.015 (and all other statutes with analogous language)
be amended to remove the prohibition against using condemnation to establish or extend a bicycle
lane and to exclude sidewalks from the definition of pedestrian way:

32.015 Limitations. Property may not be acquired by
condemnation to establish or extend a recreational trail; a bicycle
way, as defined in s. 340.01(5s); a bicycle lane, as defined in
s. 340.01(5e); or a pedestrian way, as defined in s. 346.02(8)(a),
that is not a sidewalk, as defined in s. 340.01(58).

2017 A.B. 967; 2017 S.B. 794. Sojenhomer further observes that the Legislative Reference Bureau
explained the amendments as “eliminat[ing] the prohibition against certain entities, such as a
county board, a village board, or the Department of Transportation, using the power of
condemnation to acquire land or interests in land for the purpose of establishing or extending
bicycle lanes or certain pedestrian ways.” Id. (emphasis added). Although those amendments
were never enacted, Sojenhomer nevertheless argues that they show the legislature recognized that
the term pedestrian way includes sidewalks.

The circuit court rejected this argument, concluding that multiple inferences could be
drawn from the proposed legislation that had never been enacted. We agree that this legislative
history could be interpreted in favor of either party’s interpretation. On the one hand, such a
proposal could suggest that the legislature interpreted the term “pedestrian way” to include
sidewalks and that it intended that result by refusing to enact the amendments. On the other hand,
the failed amendments could suggest that the legislature believed the term “pedestrian way” did
not include sidewalks, and, thus, the amendments were unnecessary. Accordingly, we do not rely
on these proposed amendments to support our interpretation of WIS. STAT. § 32.015.

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interpretation does not create surplusage in either § 346.02(8)(a) or (b)—even
though those provisions reference both sidewalks and pedestrian ways—because
neither term could be omitted without changing the meaning of para. (a) or (b). Our
interpretation of “pedestrian way” in § 32.015 is further buttressed by the rule that
we must liberally construe condemnation statutes that favor property owners.13

II. Application of WIS. STAT. §§ 32.015 and 61.34(3)(b) to the undisputed facts
of this case

¶39 The Village argues that even if a sidewalk is a pedestrian way under
WIS. STAT. §§ 32.015 and 61.34(3)(b), the circuit court properly granted summary
judgment in its favor because the undisputed facts show that the Village did not
acquire Sojenhomer’s property “only for” establishing a sidewalk. The Village
observes that the improvements to Highway G included: “a reconstructed roadway,
on-street parking, installation of improved crosswalks, a new channelizing island at
the State Highway 42 intersection, buried utilities, street lighting, curb, gutter and
sidewalk.” The Village argues that it has the power to acquire property for these
roadway purposes.

Regardless, we have concluded that the meaning of “pedestrian way” in WIS. STAT.
§§ 32.015 and 61.34(3)(b) is unambiguous because one could not reasonably interpret the general
definition of pedestrian way in WIS. STAT. § 346.02(8)(a) as not including sidewalks. See State ex
rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶47, 271 Wis. 2d 633, 681 N.W.2d 110 (a
statute is ambiguous if its “language reasonably gives rise to different meanings”). Thus, we need
not consult extrinsic sources of interpretation, such as legislative history. See id., ¶46.
13
Sojenhomer makes an alternative argument that WIS. STAT. § 32.015 prohibits the
Village from condemning the property because the Village seeks to extend “a recreational trail
and/or a pedestrian way” located nearby and known as Bird Trail. We need not reach this issue,
however, because we conclude WIS. STAT. §§ 32.015 and 61.34(3)(b) prohibit the Village from
acquiring Sojenhomer’s property to establish a pedestrian way. See Turner v. Taylor, 2003 WI
App 256, ¶1 n.1, 268 Wis. 2d 628, 673 N.W.2d 716 (court of appeals need not address all issues
raised by the parties if one is dispositive).

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No. 2021AP1589

¶40 In response, Sojenhomer argues that Simon’s deposition testimony
refutes the Village’s claims that acquisition of Sojenhomer’s property was necessary
to accommodate all of the improvements to Highway G. Sojenhomer points out that
Simon testified that the only highway purpose for acquiring Sojenhomer’s property
through condemnation was to establish a sidewalk and that if not for the sidewalk,
the Village would have placed the street lighting elsewhere.

¶41 As an initial matter, we recognize that the parties each seem to frame
the relevant inquiry—i.e., the purpose for which Sojenhomer’s property was
acquired by condemnation—in a different manner. The Village appears to suggest
that we may consider all of the improvements to the highway reconstruction project,
regardless of whether Sojenhomer’s property was needed for those improvements.
In contrast, Sojenhomer seems to argue that we should consider only the Village’s
reasons for acquiring Sojenhomer’s property. Neither party provides an explanation
for its respective position; therefore, we turn to the relevant statutes for guidance.

¶42 As discussed earlier, WIS. STAT. § 32.015 provides, in relevant part,
that “[p]roperty may not be acquired by condemnation to establish or extend … a
pedestrian way.” Likewise, WIS. STAT. § 61.34(3)(b) employs similar
language: “The village board may not use the power of condemnation to acquire
property for the purpose of establishing or extending … a pedestrian way ….”
Based on the language of these statutes, we agree with Sojenhomer’s approach that
the relevant inquiry is whether the Village is “us[ing] the power of condemnation to
acquire [Sojenhomer’s] property for the purpose of establishing or extending … a
pedestrian way.” See § 61.34(3)(b); see also § 32.015.

¶43 Here, the undisputed facts demonstrate that before the Village began
the process of condemning Sojenhomer’s property, the Village planned to establish

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a sidewalk on the east side of Highway G, including on Sojenhomer’s property.
Simon stated in a 2016 email that

[t]here is no continuous sidewalk for pedestrians. Currently
pedestrians need to share the roadway with motorized
vehicles and bicycles. During peak season the effective
width of the roadway is narrowed due to parking on both
sides of the roadway which further reduces the area available
for pedestrians. This is a safety issue that the Village is
looking to correct with the project.

Simon confirmed in his deposition that the Village planned to establish a sidewalk,
explaining that a sidewalk was to be installed on the east side of Highway G from
Bird Trail until Highway 42. He also confirmed that one of the primary reasons for
the project was to improve “walkability” and that the sidewalk would be for
pedestrian travel. Thus, the undisputed facts show that the Village was seeking to
establish a “pedestrian way” on the east side of Highway G. See WIS. STAT.
§§ 32.015, 61.34(3)(b), 346.02(8)(a).

¶44 The undisputed facts also demonstrate that the Village was seeking to
acquire Sojenhomer’s property through condemnation for the purpose of
establishing this pedestrian way. Simon explained in his deposition that a portion
of the planned sidewalk would be on the property acquired from Sojenhomer. He
also confirmed that the Village sought to acquire the property to create “a little more
room for pedestrians to walk.” Given these facts, no reasonable fact finder could
find or infer that the Village did not use the power of condemnation to acquire
Sojenhomer’s property for the purpose of establishing a pedestrian way. See WIS.
STAT. § 61.34(3)(b); see also WIS. STAT. § 32.015.

¶45 The Village’s focus on all of the improvements to Highway G is
misplaced. The plain language of WIS. STAT. § 32.015 prohibits the condemnation

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of property “to establish … a pedestrian way.” See id. Although the Village’s
acquisition of Sojenhomer’s property might have been part of a broader
reconstruction project to Highway G, the undisputed facts show that, regardless of
the constellation of improvements made to Highway G, the Village still acquired
Sojenhomer’s property through condemnation “to establish” a pedestrian way. Such
an acquisition violates the plain language of WIS. STAT. §§ 32.015 and 61.34(3)(b).

¶46 The Village also argues that the condemnation of Sojenhomer’s
property cannot be invalidated because the Village was seeking to address numerous
safety concerns and “the Village would still need to establish some other safety
mechanism or barrier to separate vehicular and pedestrian traffic.” We have no
reason to doubt this assertion or the efficacy of the project. We are tasked, however,
only with determining whether the condemnation of Sojenhomer’s property, under
the facts here, violated Wisconsin law, and the Village fails to cite any legal
authority supporting an argument that its safety assertion is relevant to that analysis.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we
need not address an argument that is unsupported by legal authority). In any event,
we note that neither WIS. STAT. § 32.015 nor WIS. STAT. § 61.34(3)(b) create any
exceptions, much less an exception for safety concerns.14 Thus, we reject the
Village’s suggestion that it had the right to condemn Sojenhomer’s property despite
that action violating §§ 32.015 and 61.34(3)(b).

14
We recognize that some might disagree with the policy behind prohibiting the use of
condemnation to establish pedestrian ways. Nonetheless, we must “defer to the policy choices of
the legislature[,] and we assume that the legislature’s intent is expressed in the statutory language
it chose.” Warehouse II, LLC v. DOT, 2006 WI 62, ¶14, 291 Wis. 2d 80, 715 N.W.2d 213.
Because the plain language of WIS. STAT. §§ 32.015 and 61.34(3)(b) prohibit the condemnation at
issue in this case, we must enforce those statutes as written.

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No. 2021AP1589

CONCLUSION

¶47 We conclude that the circuit court erred by granting summary
judgment in favor of the Village. The undisputed facts demonstrate 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). Summary
judgment should have therefore been granted in Sojenhomer’s favor. We reverse
and remand for further proceedings consistent with this opinion.15

By the Court.—Order reversed and cause remanded for further
proceedings.

15
Neither party discusses the remedy for a violation of WIS. STAT. § 32.015, either
generally or in the context of this case; therefore, we do not address or express an opinion on that
issue.

23