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Eminent disaster?

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Eminent disaster?
Controversial government 
tool under fire
Zerwekh: Use eminent domain? ‘Drop dead'

By CALEY MEALS - GM Today Staff

March 6, 2006


Mrs Zerwekh Owner of Delafield Roller Mill Dam

Margaret Zerwekh looks over some historical papers in her Delafield home recently. Her property has been the subject of some controversy in recent years because of city concerns over her failing Roller Mill Dam.

Delafield Wisconsin Roller Mill Dam

DELAFIELD - Margaret Zerwekh has lived in Delafield for 59 years. Longer than the city has even been a city, she says.

But she no longer feels welcome there.

"They think I should just give up and go to the nursing home," Zerwekh, 86, said. "It makes me feel awful."

City officials have considered seizing Zerwekh's 12-acre property - which includes a 161-year-old dam that is badly in need of repair - under a controversial government practice called eminent domain.

Zerwekh is just one example of several in Waukesha County in the past decade and others nationwide in which governments have employed eminent domain.

A powerful governmental tool, the process allows municipalities to seize land, including private property, for "public use."

Though officials try to use eminent domain solely as a "last resort," Delafield Mayor Paul Craig said the fact remains that it "really can be an effective tool."

Concerns over the proper usage of eminent domain increased last June, when the Supreme Court ruled in favor of pharmaceutical giant Pfizer Inc.'s plans to develop a $300 million research facility in New London, Conn., despite the fact that in order to do so the city had to use eminent domain to remove a citizen from her home.

The much-discussed Kelo vs. City of New London decision has since prompted widespread concern about governments' power to seize private property in the name of economic development.

In Delafield, the issue is not one of economic development, but rather one of concern for the crumbling Roller Mill Dam on Zerwekh's property.

The dam has been the subject of concern for years.

In October 2004, Zerwekh petitioned the Wisconsin Department of Natural Resources to abandon the dam. The city responded by passing an ordinance authorizing the use of eminent domain in order to acquire the property.

The city has yet to take further action against Zerwekh and will continue to try and resolve the issue without using eminent domain, city officials said.

"Eminent domain has to be used with extreme caution and care," Craig said. "It does have a place and a role, though."

City Administrator Matt Carlson added, "There's a mindset in the public that eminent domain is a bad thing. People don't understand that communities only use it when it's for the common good."

Zerwekh, however, remains worried. She called eminent domain "a dangerous situation," and said the process should be used only if no one is being harmed by it.

"They want to steal my land," she said. "And if they want to talk about taking my land, I'll tell them to drop dead."

A widespread issue

Sussex resident Steve Berger recently lost his own battle with eminent domain.

In order to make necessary improvements to the intersection of Main Street and Waukesha Avenue, the state exercised its power of eminent domain, which will force Berger to close his 30-year-old restaurant, The Olde Templeton.

"It's not right what they're doing to people like me," Berger said of the state's decision. "I'm not going to go down without a fight."

Though the state is required by law to pay Berger fair market value for the property, he said it will still be hard to reopen due to the lack of available, and affordable, space in the area.

"Our 30th anniversary party for the restaurant is now going to have to be a farewell party as well," Berger said. "It's sad."

Hartland has never had to use eminent domain, village Administrator Wally Thiel said. However, the village is currently in the early stages of planning a revitalization of the downtown area, plans that could involve the process, Thiel said.

"Our approach is to avoid it," he said. "But there could be significant redevelopment that requires it."

Village Trustee Michael Meyers hopes things do not get to that point.

"I don't think it's something we should be doing as a society or as a government," Meyers said. "To come in and take people's buildings, it concerns me.

"I was always told you can't steal, you know?"

Delafield's Carlson had a different take when it comes to Zerwekh's property.

"We're not interested in throwing anyone out on their ears," he said. "But repairs for the dam are imminent."

What is eminent domain?

Eminent domain is a tool that allows municipalities to seize land, even if it's private property, for "public use." The practice, though not specifically detailed in the Constitution, is based on the Fifth Amendment, which states in part "... nor shall private property be taken for public use, without just compensation."

In Wisconsin, property owners must be given fair market price for their property as well as funds for relocation if eminent domain is used to seize their property.


Law changes?

In response to the public uproar caused by the Kelo vs. New London decision in Connecticut, Wisconsin officials introduced a number of bills limiting eminent domain in 2005.

* Assembly Bill 657 would prohibit condemnation of property for a private entity if the property is not "blighted," defined in the bill as a property that is unsanitary, unsafe, abandoned or otherwise uninhabitable. The state Assembly passed the bill by an 88-9 vote Sept. 27, and it is now in committee in the Senate.

* Assembly Bill 682 and Senate Bill 437 propose to prohibit any condemnation of property that is not expressly authorized by statute. Current law refers to condemnation for "any lawful purpose." Action has yet to be taken on the bill.

* Assembly Bill 457 proposes to eliminate the condemnation authority of all nongovernmental entities that are now allowed to acquire property, such as railroad corporations and public utilities. Action has yet to be taken on the bill.

Source: Hartland village officials


Eminent examples

Three Lake Country examples of the use of eminent domain:

* February: Sussex resident Steve Berger was ordered to shut down his 30-year-old Olde Templeton restaurant by Jan. 30 to make way for improvements to Highway 74, which runs through the village's downtown area.

* Late 2004: Delafield officials passed an ordinance authorizing use of the eminent domain process on 40-year-resident Margaret Zerwekh's property in order to make necessary improvements to the Roller Mill Dam on her land. The city has yet to act on the ordinance and hopes to avoid doing so, Mayor Paul Craig said.

* Late 1999: Delafield officials considered using eminent domain to acquire two automotive repair shops downtown to make room for a city parking lot. Tom's Auto Body on Oneida Street and Gary's Auto Repair on Main Street were spared when the city was able to purchase a parcel of land behind City Hall for the lot.


Dam lawsuit

Several neighbors of Delafield resident Margaret Zerwekh - including Alderman Stephen Headley - have filed a lawsuit against her hoping to stop her plans to remove her Roller Mill Dam, which would drain their mill pond and, they claim, reduce property values. They also want Zerwekh to keep up the dam, which they claim is in disrepair.

Both parties are due in Waukesha County Circuit Court March 27 for a hearing. A final pre-trial hearing is Sept. 11.

Caley Meals can be reached at cmeals@conleynet.com


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