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City seeks to condemn Zerwekh dam

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By KELLY SMITH

Staff Writer

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.

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