FOX11 Investigates flaws in Wisconsin's plan to expand trails, pedestrian ways
The expansion of recreational trails and pedestrian ways have run into a roadblock across Wisconsin thanks to a relatively new amendment to the state's eminent domain law.
Local governments exploring urbanization projects say construction projects are being put in jeopardy over the change affecting the rights of private property owners.
Calumet County is finalizing a plan for major improvements along a stretch of Lake Park Road. Those plans call for a center turning lane, and bike lanes. It also incorporates a recreational trail on one side of the roadway, with a sidewalk on the other.
State Senator Roger Roth of Appleton support the $5.5-million project—80 percent paid for by a federal grant.
"That area has seen some explosive growth over the last 20 years, just in housing and otherwise…You cannot walk that road safely, there are just not enough amenities there to do that," said Roth.
The construction would line up with the improvements recently completed by the city of Appleton just up the road. The sidewalk, bike lanes and recreational trail are all required as part of the federal grant.
But to extend the 5-foot sidewalk and required setback from the road, property owners on the Village of Harrison side of the road will lose several feet of land, being acquired through eminent domain. That’s when the government can purchase your land without permission for public use.
"That sidewalk, if you follow the letter (from planners) that’s identified, it’s going to come through here, the mound, everything will be impacted," said homeowner Tom Hooyman who lives along the part of Lake Road being updated.
Hooyman is raising concerns about losing property, and what he calls expensive and sentimental plantings. One tree he and his wife planted 30 years ago will have to come down. He believes a relatively new state law prevents the county from taking his land for a "pedestrian way" without his consent.
"Can they take it for the sidewalk?" FOX11 Investigates asked Hooyman when visiting his property.
"That’s my question," replied Hooyman in search of clarification of the law.
The statute in question was added to state law last year. Under Eminent Domain, it states, "...property may not be acquired by condemnation to establish or extend a recreational trail, a bicycle way, a bicycle lane or a pedestrian way.”
The change in state statute came about last year because of an issue on the other side of the state, where a local government wanted build a recreational trail through the middle of someone’s property. A legislator stepped in, drafted legislation to prevent the acquisition through eminent domain, and slipped it into the state budget bill without discussion.
But various communities planning urbanization projects quickly discovered its flaws, including Two Rivers.
"It’s sown some seeds of confusion and has caused some controversy out there and cast doubt on some future projects," said Greg Buckley, who is the city manager in Two Rivers.
Last fall the city planned to extend a recreational trail along highway 42 for another mile to the high school. But the new law doesn't allow taking property for such a project through eminent domain, even though plans for the expansion were in the works well before the law changed.
"Had legitimate fears it would jeopardize the whole project," said Buckley.
Two Rivers was able to acquire the land by getting the landowners to voluntarily sell a portion of their property for an agreed upon price. Construction of the recreational trail extension is set for later this year.
"I still would contend from the local level it was a bad and is a bad public policy to prohibit use of eminent domain where necessary," added Buckley.
FOX11 Investigates took the eminent domain concern to State Senator Roger Roth, R-Appleton, who is currently drafting new legislation to hopefully clear up the confusion.
"I don’t think we saw the unintended consequences of what we’re seeing right now. And that’s why I’m working on a fix to that," said Roth.
Roth says the intention of the legislation was to prevent local governments from cutting through private property without permission. He says for safety along roadways eminent domain is a different story.
But the legislature won’t be back in session until January.
Tom Hooyman has a deadline of August 2nd to agree to a deal or Calumet County plans to proceed with eminent domain. Calumet County says he’s the only holdout out of more than 60 parcels of land.
"There’s this debate over sidewalks verses pedestrian trails. If you look up pedestrian trail anywhere it references sidewalks," said Hooyman, over the confusion of what constitutes a sidewalk.
Calumet County’s view of the law is it doesn’t apply since it references a “pedestrian way” and doesn’t specifically mention a “sidewalk.” State law describes a pedestrian way as “a walk designated for the use of pedestrian travel.”
The Wisconsin Department of Transportation weighed in on the confusion—and in its analysis, wrote: "...the term ‘pedestrian way’ should be read to include only those walks providing pedestrian travel that are not sidewalks.”
Hooyman says, sidewalk or not, the acquisition of land is to accommodate the entire project--which includes a recreation trail and bikes lanes clearly mentioned in the new law.
"They are not acquiring this land just for a sidewalk, they’re acquiring it for the whole project and the project includes terrace, bike lanes, rec trails across the board," said Hooyman.
As for Hooyman, he says he’s agreed to a price for his land. The only holdup is getting the details promised to him in writing.
"You probably feel they don’t have to negotiate because in the end they can just take it, and that comes back to the question: 'Can you or can you not?' And I don’t feel I’ve got a definitive answer to date on that," explained Hooyman.
"I can see where there’d be confusion," admits Roth.
Roth plans to introduce his legislative fix in January when the legislature is back in session, and well before the Lake Road project construction begins next summer.
Click link to watch video.