Railroad seeks to have developer’s suit dismissed
Judge considering arguments after hearing this week

By Brian S. Huber - Freeman Staff

Aug. 29, 2015

WAUKESHA — A Waukesha County Circuit Court judge is considering arguments in a lawsuit brought by a firm wishing to use part of a railroad right-of-way in Pewaukee for parking, just as a prior business there reportedly did for decades.

Tom Davis, a partner in the Pewaukee Land Co., sought approval for an open-air rooftop restaurant on the site of a former Denny’s Service and BP station at 2221 W. Wisconsin Ave., but was told by the Plan Commission in 2013 the site needed at least 34 parking spaces, far more than were available.

The Pewaukee Land Co. last fall filed a lawsuit against the Soo Line Railroad Co., which operates the Canadian Pacific line and owns the railroad and the right-of-way abutting the gas station site. The suit seeks “adverse possession” of part of the right-of-way, arguing the service station “continually occupied the subject property for more than 40 years.” The suit maintains such possession has been “visible, open and notorious.”

“The Pewaukee Land Company is attempting to adversely possess the property. It has been a parking lot for a number of decades,” said Matthew Fernholz, an attorney for the plaintiffs, on Friday.

The court file includes an affidavit from former Pewaukee Police Chief Ed Baumann, who said during his nearly 30 years as chief, he received various calls from the railroad about people on the tracks but “not once” for a complaint of people parking at the gas station.

In June, attorneys for the railroad responded with a motion for summary judgment — a move to decide a case when no material facts are disputed. In a memo accompanying the motion, railroad attorney Matthew Seltzer said the Interstate Commerce Commission Termination Act pre-empted any such use of the right-ofway.

“(U)nder ICCTA’s per se preemption framework, there are only two material facts required for this Court to resolve CP’s motion for summary judgment. Neither of these two facts is, or can be, disputed by plaintiff. First, the land in question is a CP railroad right-of-way. Plaintiff cannot deny, and in fact has admitted in its Complaint, this fact,” he wrote.

“Second, Plaintiff cannot deny, and indeed its Complaint evidences, that it seeks to take control of CP’s right-of-way through adverse possession and a prescriptive easement. Because there are no genuine issues as to either of these material facts, CP is entitled to summary judgment on both of Plaintiff’s claims on the basis of federal preemption.”

Seltzer could not be reached for comment Friday.

Justin Meyer, general manager of capital planning for the CP, said in another affidavit the rightof- way is “essential” to railroad operations on the line, which is its primary route from Chicago to Vancouver, carrying 18 to 22 freight trains and least two passenger trains a day. The right-of-way is needed to provide a safety buffer, as well as space for drainage and maintenance and service on the tracks and space for future expansion, he said.

After hearing arguments this week, Judge Maria Lazar is taking the matter under advisement, with no timeline set for her ruling. Should the case not be dismissed, it is set for a March pretrial conference.

Email: bhuber@conleynet.com