Hope To Find Compromise For County BB ControversyIssue Date: October 16, 2013
In hopes of finding an amicable solution to the controversy surrounding the reconstruction of county Hwy. BB and its accompanying bike/walking paths, Town Chair Herman Pottratz announced at the Town Boards regular meeting on Tuesday, Oct. 15 that he has set up a special meeting for affected residents at Little River Country Club at 6 p.m. Thursday, Oct. 24.
Were not trying to stop the project, Pottratz declared. Were just trying to get rid of the ditches, which are not needed!
County Board Supervisor Don Pazynski, whose district includes the entire project area, also expressed hope that compromises can be achieved and that a suitable solution can be found.
Major issues are the deep ditches to which Pottratz objects and requirements that encroachments must be removed, even those that have existed for as much as fifty years, and some that extend only inches into the right of way claimed by the county. Complicating matters are some surveys that show different property lines than those claimed by the county. Project engineers are looking into the validity of those surveys.
Residents of the area for several years have been seeking improvements to the road, and asking for a bicycle/walking trail along the roadside. That request hs been accommodated in project plans.
The $3.5 million County BB project area extends west from the Marinette city limits to Pond Road in the Town of Peshtigo. There are about 200 improved parcels directly fronting on Co. BB in the project area and 99 of these have some encroachment in what the county claims as its 66 foot right of way. There are over 300 total residences in the project area served by County BB when those living in subdivisions off the county highway are included.
As currently planned, the repaved and reconstructed road will have an 11 foot drive surface plus a three foot walking and bike path for each lane. State regulations demand five feet width for official bike and foot paths, so that portion of the road is reportedly not getting state aid.
Pazynski said the three foot paths are a compromise that seems to please everyone, and he hopes other compromises can be achieved as well.
Letters went out from Highway Commissioner Ray Palonen 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, and this lack was noted at the Highway Committee meeting on Wednesday, Oct. 9. Palonen said the letter was a request to remove encroachments, not an order.
Subsequently, at its September meeting, the Town Board hired Atty. Dave Spangenberg to advise owners of these properties of their rights to oppose the removal orders, and at least 33 of the 99 residents notified sent objection notices.
At the Oct. 9 Highway Committee meeting Palonen asked to have the encroachment deadline removal advanced to Nov. 30 of this year and the committee approved the request.
Later that day letters went out to the 99 property owners stating:
The purpose of this letter is to inform you Marinette County will begin construction activities on CTH BB Between University Drive and Pond road in the spring of 2014. As a result, your property was identified as having an encroachment within the county right of way that must be removed to allow for construction.
Encroachments are those objects that belong to the property owner but are located within the county owned right of way and may include but not be limited to fences, landscaping, light poles, roadside obstructions such as large decorative mailboxes, and private utilities. The county right of way has been marked with painted wooden lathe to aid you in determining the location of the county owned right of way.
The letter goes on to say after careful consideration the county has revised the date, and all encroachments must be removed by November 30 to avoid conflicts with construction related activities. It adds,This letter does not constitute an order, rather it is a request to voluntarily remove privately owned right of way encroachments. The letter again did not provide information on objections or appeal processes. It states trees and brush within the county right of way will be removed by the county, and anyone unsure of the location of county right of way should contact the Highway Department.
Copies were sent to County Administrator Ellen Sorenson, Corporation Counsel Gale Mattison and highway committee members, but not to Supervisor Pazynski, who had asked that copies of all correspondence connected with the BB project be sent to him, and not to County Board Chair Vilas Schroeder, who also is treasurer for the Town of Peshtigo.
Upset with lack of a copy for him, Pazynski wrote to Palonen, You sent a second correspondence, dated Oct. 9, to residents of County BB regarding right of way infringement. Again, you did not include me as a recipient. As the elected supervisor of this district I insist upon being included in all such correspondence. I should not have to repeat this request in the future. Secondly, I wish to inquire what your procedure will be if a resident cannot or will not vacate the right of way by Nov. 30 as stated in your correspondence.
In his response, Palonen apologized for failing to keep Pazynski informed, and wrote:
The procedure of moving forward is that residents that do not voluntarily remove encroachments by Nov. 30 will receive an order mailed by certified letter from the Highway Department to remove their encroachment within 30 days (provided the Highway Committee directs that to take place).
Residents that contest the encroachment will then be able to send a denial letter stating they deny they have an encroachment, which will then force the issue to be addressed by a judge.
If a judge then issues a judgment to remove the encroachment, then the county can physically remove the encroachment and bill the town for the cost of removal. The town can then add the cost to the property owners property tax if they so choose, Palonens letter went on.
In addition, there seem to be two or three parcels that are anomalies in that they do not match the right of way dimensions for the rest of the project. The design engineer is currently doing research to determine the cause, but they believe there was a mistake made by a surveyor many years ago, he continued.
Encroachments need to be removed to allow for utility adjustments/relocations and to allow the contractor to begin their work early next spring. The county needs to cut trees and remove stumps and the utility companies need both the trees and stumps removed to complete their work prior to contractor beginning their work.
All of these activities are interdependent upon the other so as we discussed at the highway committee meeting, if the right of way/encroachment/tree issues are not cleared up very soon I believe the likelihood of the project being constructed and completed in 2014 will be very small. The Highway Committee will then need to make a decision with regard to the future of the project, Palonens letter concluded.
Pazynski said he does not want to see the project delayed, but he also does not want the scenic beauty of County BB destroyed.
At the Oct. 9 meeting the Highway Committee learned at least two of the properties have surveys that differ from those of the county. Palonen confirmed he had known of this, and said the project engineer is working on it. He believes they will find the old survey was in error.
I am dismayed to learn the county Highway Committee did not verify the right of way measurements they are attempting to enforce, Pazynski declared. I trust the Highway Committee will resolve this difficulty as quickly as possible, rather than delay the project more than it has already been.
However, should they choose to delay rather than to solve the problem they will create a public relations nightmare that will focus public opinion upon the inept manner by which this project has been handled to date.
A flexible right of way interpretation would have respected that this a residential area with a scenic road designation - not some remote rural area. Flexibility would have eliminated the problems that we are now facing.
Population density and traffic volume dictate special consideration for the wishes of the taxpayers served by this project, rather than the dictatorial attitude projected thus far. We have come to the point where the Highway Committee has to realize this and be more attentive to the wishes of the taxpayers. After all - taxpayers are paying the bill, Pazynski continued.
Im hoping county officials can meet with the citizens affected in the very near future and work out an amicable solution. I dont want this badly needed project to be delayed unnecessarily, Pazynski added, indicating he would help set up a meeting. That was before he learned that Pottratz had already set up the meeting on Oct. 24.
Pazynski said he will be there. He said the people of his district elected him to represent them, and it is his responsibility to do so. He is pleased that he got the highway department to put into writing that they will go back and blacktop all the driveway aprons that were blacktopped to start with, also got in writing in writing that mail boxes taken down will be placed by the homes and temporary clusters of mail boxes will be put up to serve until the construction is done, after which the removed mail boxes will be restored to their places.
The Peshtigo Times news report of the Oct. 9 Highway committee meeting noted that encroachment removal request letters had gone out to 99 affected property owners, and on that basis said one third of the owners affected had raised objections.
An unidentified correspondent who is obviously well informed has raised some issues with last weeks report on the Marinette County Highway Committee meeting correctly objected to that data. The news article stated one third of the residents objected, but did not specify that it was one third of the property owners affected by the removal notices who objected.
There are in fact approximately 200 properties fronting directly on BB in the project area, and a total of more than 330 improved properties served by that road, including those living in subdivisions, cul de sacs and on dead end roads.
Of the 200 properties directly on BB, 99 owners received the encroachment notices, so the 33 denial notices came in fact from one sixth of the property owners affected, not one third as stated in the Peshtigo Times last week.
A small, outspoken minority is trying to stop the project along with the help of Herman Pottratz (Peshtigo Town Chair) and his Town of Peshtigo Supervisors, the anonymous letter states, and then asks how much taxpayer money Pottratz is spending to represent a few residents who have infringed or encroached into the right of way.
The letter mentions attending the April 3 presentation at Little River, where the question was asked if any land would have to be purchased to complete the road project and both Robert E. Lee and the Marinette County representative indicated that the current right of way was sufficient, and then asks why the town allowed people to build or encroach on the right of way.
Pzynski said In defense of the property owners with encroachments, that many have been there for years, before current road widths were established. One resident told him they had measured from the center of the road before building their fence and built accordingly. Subsequently, when lines for the road improvements were laid out location of the road was changed slightly and now a part of their fence is over the line.
Pottratz said there also is the issue of adverse possession, in that a large percentage of the owners have been maintaining their properties, including the ditches, for 20, 30 and even 40 years. There is legal precedent for them to claim ownership under specific conditions. Pottratz said Spangenberg will attend the Oct. 24 meeting and will answer questions there, but will not provide specific legal advice for differing individual situations. In his letter to property owners Spangenberg advised that they should retain their own legal counsel if they believe they have legal issues.
The project, as originally designed by former Highway Commissioner Mark Desotell was given an estimated price tag of $1.5 million, but then was put on a back burner because the department was badly over budget. After Palonen took over the Highway Commissioners job, decision was made that the project design was insufficient and it had to be redesigned and that new design, prepared by Robert E. Lee, carried a $69,000 price tag, and a new estimated cost of $3.5 million, to which Pottratz has consistently objected.
One of Pottratz main objections has been to proposed deep ditches he maintains are not needed given the sandy nature of the soil. He said the ditches present safety hazards of their own to motor vehicles, bicycles and pedestrians, and will prevent property owners from mowing and maintaining the right of way in front of their properties as they have always done. The county will not be able to maintain them as well, Pottratz said, and predicted the Town of Peshtigo will see an extremely scenic route turned into another unkempt roadside, maintained to a small degree at county expense.
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