Peshtigo Town Residents Protest County BB Encroachment OrdersIssue Date: October 9, 2013
For years, residents along County BB in the Town of Peshtigo (Shore Drive) have been requesting improvements to their road, including a bicycle/hiking trail. Now the Marinette County Highway Department has plans to re-do the road in 2014, but if built as currently designed, the cost, measured in loss of yards, privacy and landscaping, is more than at least a third of the residents in the proposed project area between University Drive at the Marinette city limits west to Pond Road, are willing to pay.
At the standard 66 foot width as designed, with somewhat deep ditches on each side, the expanded road area will cost many residents much of their front yards, yard decorations, rock gardens, fences, privacy plantings and trees shielding their homes from the road.
At least one will be left with a driveway too short to park a car outside their garage. In another case a garage may have to be moved, and in several cases stone driveway arches that have existed for perhaps 50 years years will have to be either destroyed or moved. Sidewalks at Dr. Bozelkas clinic at the corner of Shore Drive and County T/University Drive will have to go.
Letters went out to 99 affected property owners on Sept. 9 advising they had to remove all encroachments by March 14 of 2014. There was no mention of an appeal process.
Concerned with the effect of the ditching and the new width on what Town Chair Herman Pottratz describes as a particularly beautiful drive through a residential area of their town, the town board in September agreed to hire Attorney David Spangenberg to advise residents on the issue.
Subsequently the affected property owners were advised by Spangenberg that if they objected to moving their alleged encroachments, they must send a written denial notice to the Highway Department within 30 days, and at least 33 of the 99 have done that.
Then, on the agenda for the Highway Committee meeting on Wednesday, Oct. 9 came action authorizing Highway Commissioner Ray Palonen to send revised letters to residents with alleged right of way encroachments advancing the deadline for removal of alleged encroachments to November 30, 1913.
At the meeting Palonen said his department needed to get utilities moved now to allow starting the project next spring, and to do that, trees in the right of way will need to be removed. He proposed starting the tree removal portion of the work at once, saying those trees are county property since they are growing on county right of way. He said they need to do it now so stumps can be removed before the ground freezes.
A dozen town residents, including Pottratz, attended that meeting. Pottratz and property owner Frank ORourke expressed their concerns during time for public comment. Before the meeting, Pottratz gave Committee Chair Russ Bousley a copy of a survey showing the county only owns 44 feet of right of way on at least one property, not the 66 feet being claimed.
A tour of the project area showed several instances where the countys right of way stakes were set inside of private property lines as indicated by survey stakes.
After considerable discussion the committee by three to two vote agreed Palonen should send the letters advancing the deadline date. The vote was Bousley, Mel Sharpe and Joe Policello in favor and Shirley Kaufman and Russ Bauer opposed.
However, committee comments indicated they expect enough objections from property owners to force some court procedures, and their comments indicated Palonen should hold off on tree cutting until all the issues are settled. However, no formal action was taken prohibiting him from cutting.
Pottratz, who has long opposed the project as currently designed by Robert E. Lee, said adding the deep ditches increased project cost from $1.5 million to $3.5 million and creates hazards for both motorists and bicyclists, as well as affecting the beauty of the area.
At the meeting he noted residents all keep their roadside areas mowed and maintained, and the county never has to mow there, which will not be the case if there are deep ditches. He said the sandy soil there is always well drained despite its proximity to the Bay and there is never standing water in the slight ditches that currently exist.
ORourke told the committee he was raised Catholic, and always knew there are two types of sins...sins of commission and sins of omission. I think sending those letters without describing the objection procedures was a terrible sin of omission, he declared. Then, today, I see the time for removal is being moved up to Nov. 30, taking us through the busiest time of he year, and with winter setting in people will have no time to take care of it.
ORourke said the issue isnt the repaving of the road or the bicycle trail, its the full 33 feet of right of way the county wants to take on each side of the road.
Pottratz agreed, adding the real issue is ditches, which are not needed. That entire road right now is a wonderful drive, he said, beautiful, mowed and maintained. They county never has to do any mowing there, the residents take care of it. He repeated there is never standing water, drainage is not a problem, and the ditches are not needed, nor was the $200,000 paid to Robert E. Lee to design them.
As to rushing the order to remove encroachments, he declared, These people deserve their day in court! He suggested if there was willingness to negotiate, something perhaps could be worked out, and reminded the commissioner of his response a month ago, when asked if he would allow an inch of encroachment, was that he would not allow a quarter of an inch.
Bousley, referring to the surveys, said at some properties the county only owns 44 feet of right of way, and if thats the case, well have to stop and rethink this.
Palonen said two parcels dont match the standard 66 foot county road right of way,and Robert E. Lee surveyors have been doing research on this issue for several weeks. He said they think there was a mistake by the surveyor who did the work in 1976.
Why wasnt this found before? Bousley asked. He said people have owned their properties for years and have tenancy rights.
Legal documents Pottratz had showed the adjoining land owners may also have the right of adverse possession, since they had been maintaining the right of way for many, many years.
Palonen said the surveyors have been working on it for a few weeks, and if there are survey documents pre-dating the ones that show the narrower right of way they will take precedence. He thinks that will be the case.
Bousley asked about failure to notify owners they had the right to protest, and Palonen sid the letters he sent merely asked them to remove encroachments, they did not order.
Bauer disagreed. The letters said shall, which is an imperative.
ORourke had asked how many letters of protest were received, and Bauer repeated that question. Palonen said he had received 30 to 32 protested the countys encroachment letters.
And we just learned about that! Bauer declared. He said the committee should have copies, and Palonen said he would provide them. He repeated his letter was not an order to remove the encroachments, its just request.
In his letter to residents after being retained by the town, Spangenberg referred to letters they received on or about Sept. 5, wherein you were ordered to remove alleged encroachments on your property within the expanded right of way by May 1, 2014. Spangenberg noted neither he nor the town were representing individual residents, It is simply the position of the town to assist you in any way possible with this unique matter facing town residents. I would urge each of you to consult with legal counsel of your choice at the earliest opportunity to protect your legal rights.
Spangenberg provided a form on which to file objections, and explained a possible defense to county action could be adverse possession provided they or the previous owners had maintained the property for 20 years, but there are other defenses as well, specific to each situation.
Palonen said after receiving the objections he talked with the countys Corporation Counsel and learned the official encroachment notices must be sent by registered mail. The owners then have 30 days to respond if they object, after which the issue would go to circuit court.
Bousley wondered if due process could be accomplished in six weeks. He said if it cannot, the county will be doing removal before ownership is settled and before the response time is up.
Everything is condensing down on us, Palonen declared.
Kaufman objected to first sending a letter giving the March 14 deadline, then following it up with one giving a Nov. 30 deadline. She asked what would happen if they stay with the March 14 deadline, and was told it could mean delaying things until the project could not be completed in 2014.
It was unclear at the meeting whether property owners who have already filed objections will be required to do so again in view of the new notice letters, but it appears that may be the case.
Bousley predicted they will be going to court. Policello suggested it would be a waste of county time and money if they start removing trees before the encroachment issues are settled, and Bousley agreed. He too wanted copies of the objection letters.
Policello said if the residents want the improvements done next year they will not object. Palonen agreed, and added if the residents do not want it, they can always spend the money elsewhere.
In other action the committee approved a three way contract between the county, Wisconsin DOT and Mead & Hunt, Inc. for design of the Little River Bridge at a cost of $55,022.43. Palonen said he prefers a square concrete culvert type structure, but the designer will look at cost of feasible options and proceed.
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