Waukesha land subject to dueling condemnations

Published on: 6/15/2011

Town of Waukesha - In an effort to trump the City of Waukesha's plans for drilling high-capacity water wells near the Vernon Marsh as a backup water supply, the Waukesha Town Board Wednesday unanimously voted to condemn the same 13-acre site for its own purposes.

Dueling resolutions by competing governments to condemn the same parcel is new legal territory, Town Attorney Hector de la Mora told the board.

"Much to my amazement, there is no case law clearly on point," he said.

But he recommended the action because he believes the city's delay in completing the condemnation process - or even submitting an offer to purchase the parcel - constitutes nullification of its rights, particularly when measured against the town's rights.

In 2008, the city's Common Council voted to condemn the property, owned by Fiduciary Real Estate Development Inc. and located on Highway I about two miles south of the city, after the council twice rejected the developer's annexation petition.

The Waukesha Water Utility intends to first drill five test wells on the site to determine if there's enough water available and to estimate the underground water level's drop if the city places production wells there.

Ultimately, shallow wells there could serve as an emergency backup if the city is successful in getting its primary water supply from Lake Michigan. If the city's pending application for Lake Michigan water is rejected, the wells in the Town of Waukesha could help the city meet its 2018 state-ordered deadline for eliminating radium from its water supply.

The Town of Waukesha is already challenging the city's well plans for that parcel. It filed a lawsuit last year that contends the city would violate town zoning if it drills wells on land zoned for agriculture and conservancy. It has also challenged the state permitting process.

In the "resolution of necessity" adopted Wednesday, which lays out the public purpose for the condemnation, the town said the property would serve as parkland surrounded by the state-owned Vernon Marsh Wildlife Area.

Park use would protect the town's underground water supply, provide town access for residents to the Vernon Marsh and offer passive recreational activities in a natural area, the resolution says. Approval came without debate.

Waukesha Assistant City Attorney Julie Gay declined to comment on the town's action.

Asked why the city had not submitted a purchase offer on the property it is condemning, Gay said, "We continue to be in negotiations on the purchase."

She said there are "several legal issues" that have led to the long negotiations, and she said the Town of Waukesha's lawsuit is "a consideration" in holding up the matter.

Water Utility Manager Dan Duchniak declined to comment, citing the ongoing litigation. He and several other city officials, including the city administrator, the Common Council president and the mayor, have recently been deposed by the town's lawyer in the lawsuit.

Mayor Jeff Scrima said he wasn't surprised by the town's actions, which he called "consistent with their effort to protect the natural resources within their jurisdiction."

He said, "The town has a right to exist, and my hope is that in the spirit of regional cooperation, we can work with the town and together come up with a solution that will be mutually beneficial. "

Brett Miller, vice president of Fiduciary Real Estate Developments Inc., attended Wednesday's Town Board meeting and confirmed in an interview that his firm has not received a purchase offer from the city.

"We've been a ping-pong ball in the process," he said. But - perhaps envisioning an ultimate purchase price for the 13 acres - he said the parcel and its water resources are evidently quite valuable, given that two governments are competing for it.

Fiduciary acquired about 300 acres from the Lathers family five years ago. It sold about 200 acres to the Department of Natural Resources for about $6,000 an acre as an expansion to the Vernon Marsh. In the center of that state land is the 13 acres in dispute between the city and town.