By KELLY SMITH
Lake Country Reporter 10A Thursday, December 9, 2004
City Seeks To Condemn Zerwekh Dam
City of Delafield - The Common Council voted Monday to consider seeking condemnation of the waterfront property owned by an 84-year-old widow.
The city wants to force Margaret Zerwehk to sell the millpond dam she owns, along with her more-than-150-year-old home and 12 acres of land along the Bark River millpond about one mile west of Lake Nagawicka's St. Johns Bay.
The strong measure could force Zerwekh to do something she does not want to do: negotiate with the city.
It could cost the city up to a million dollars to purchase the land and repair the dam that extends 400 feet north of the intersection of Main Street and Mill Road.
City Seeks to condemn Millpond Land
The property is valued at about $360,000 by the city's assessment firm, Accurate Appraisals of Appleton.
A state engineer estimated it could cost a half million dollars - or more - to repair the dam and widen the spillway to meet state dam safety standards.
"But you never know. You could discover there is a weak foundation and the cost could go easily as high as a million dollars," added Bill Sturtevant, assistant chief of dam safety for the Department of Natural Resources (DNR).
Zerwekh does not want to sell to the city.
Her late husband, an engineer, purchased the former grist and lumber mill in the late 1940s and converted it into a small hydroelectric dam.
Zerwekh said she sold small amounts of power to We Energies until about two years ago.
"If I sell my land, I want to do what (he) would want me to do: sell it to someone who understands hydropower and understands the beauty and power of the water," she said.
"The city doesn't understand that. They don't know what they are doing. I don't trust them," she added during an interview Wednesday.
Some city officials - and a handful of Zerwekh's neighbors along the millpond - fear she has taken action that might prompt the DNR to remove her dam drain the millpond.
Zerwekh has asked the DNR to allow her to abandon her permit to operate the dam because of the cost to repair it.
"I would have to win the lottery to afford what it will take to repair the dam and I am not talking Megabucks, I am talking Powerball," she said.
If the DNR grants her request, the concrete spillway and portions of the earthen embankment might be removed and the Bark River allowed to return to its "post glacial condition," Sturtevant said.
"We will let Mother Nature take her course and determine the flow of the river," he added.
However, Sturtevant pointed out that there is a lengthy review process that must be completed before the DNR decides whether to allow Zerwekh to abandon the dam.
The process could take years, according to a memo prepared for the Common Council by City Administrator Matt Carlson.
More than a dozen of Zerwekh's neighbors showed up at a Common Council meeting Monday urging the city to purchase her land.
The draining of the pond would mean a significant loss in property values for the residents and a loss in recreational, ecological, water quality and flood control assets to the city, according to city officials and the neighbors.
"More importantly, this millpond has been in existence for over 150 years and is absolutely beautiful. People fish, canoe, kayak, paddleboat and enjoy the beauty of the area up and down the millpond; no price can be put on that," said Mike Gagliano, a millpond resident.
With little debate, the council in open session unanimously approved a resolution expressing its intent to purchase the land.
The idea of purchasing the land had not been previously discussed in public by the council, although it had been suggested in a memo from Carlson distributed to council members prior to the meeting.
After the public meeting, the council went into closed session for about 45 minutes to discuss strategy in acquiring the land.
The council emerged from closed session and without debate unanimously adopted a motion that instructed Carlaon to "begin the process of eminent domain and, at the same time, approach the property owner to cooperatively work with the city to resolve this issue."
Zerwekh said no one in the city administration has formally discussed buying her land with her.
She said she did not know about the council's plans to discuss her property until she received a telephone call at 10:30 p.m. Sunday from Mayor Paul Craig.
Zerwekh said she did not attend Monday night's meeting because she thought the issue was going to be discussed in closed session.
Carlson said the council's action was a "straightforward effort" to put Zerwekh on notice that the city wanted to purchase her land.
During an Oct. 4 council meeting, Alderwoman Marily Gardner said residents along the pond had complained the pond water levels were too low.
According to Gardner, neighbors had assisted Zerwekh in regulating the dam to increase water levels.
Zerwekh told the council the dam and hydroelectrical equipment needed about a million dollars in repairs and she was considering seeking permission to abandon the dam.
Craig said he would prefer she not abandon the dam. The mayor and Gardner asked Zerwekh to inform the city before she submitted the application to DNR.
Zerwekh submitted the application, without conferring with the city, a few days later, according to Carlson.
Alderman Phil Schuman, chairman of the Lake Welfare Committee, said some council members weighed the public relations implications of a municipality seeking to condemn land owned by a well-known widow in the community.
Zerwekh is a freelance writer who contributes monthly to the weekly Old Rail Fence column about Lake Country history.
"There are always two sides to a story. Margaret's neighbors have tried to help her with dam and she has basically told them to stay off her property. The city has also tried to work with her," Schuman said in an interview.
Schuman said it was essential that the city take steps to preserve the pond in order to protect Nagawicka Lake.
About half of the more than 3,700 dams in Wisconsin are privately owned. The owners of those dams are responsible for the cost of maintaining them and are liable for damages that result from dam failures, according to Sturtevant.
He described Zerwekh as "an excellent dam owner" who has spent large amounts of money maintaining the barrier.
He said it is not unusual for private owners to seek to abandon their dam permits.
It is also not unusual, he said, for municipalities to take over the dams.
He said municipalities often raise revenues to pay for dam repairs and improvements by forming lake districts which have the power to levy taxes or special assessments on residents living in the district and benefiting from the dam.
Alan Madry, Marquette University real estate law professor, said the municipal condemnation process is relatively simple.
He said the municipality must demonstrate to the court that there is a significant public interest in condemning the land, The municipality must be willing to pay a fair market price for the land, he said.
Madry said courts have traditionally granted municipalities wide latitude in determining when it is in the public interest to condemn land.