Wausau calls special meeting to discuss legality of using eminent domain for recreational trail

By Shereen Siewert

A special council meeting is set for Tuesday in Wausau to discuss how the city will acquire land to accommodate a proposed recreational trail at the Business Campus, after the city attorney pointed to a state law that prohibits the use of eminent domain for such uses.

The project, which is funded at 80 percent by a Department of Transportation grant and 20 percent through city participation, requires Wausau to acquire permanent limited easements and temporary limited easements from six separate properties, which are now privately owned. Wausau Director of Public Works Eric Lindman, in a Jan. 28 memo to council members, said the city is “progressing through the eminent domain process currently.

But that might not be legal in Wisconsin. In 2017, Act 59 of Wisconsin’s budget bill amended the state’s statutes to prohibit the use of eminent domain, or condemnation, to establish or extend recreational trails, bicycle ways, bicycle lanes or pedestrian ways.

Eminent domain is the right of government to take private property for public use following fair compensation. Using eminent domain to acquire property is considered controversial for several reasons. The Fifth Amendment and nearly all state constitutions mandate that government may only take private property for a “public use.” Almost from the very beginning, there has been conflict between advocates of the “narrow” and “broad” interpretations of this rule.

Dist. 3 Alder Tom Kilian last week asked City Attorney Anne Jacobson to weigh in on whether eminent domain was appropriate for the project, which was initially included in the council’s consent agenda until Kilian asked the item to be removed for more discussion.

Kilian said that given his neighborhood’s experience with eminent domain issues along Thomas Street, eminent domain is “not something I’m very fond of.”

Jacobson told the council that the city is not always required to follow eminent domain to acquire property. Once the council agrees to use eminent domain, the city must follow through on the same process – which can be complex and costly.

“I don’t know why they’re starting down this road or if they’ve thought of other options, but it appears you’re being asked to approve a relocation order,” Jacobson said, noting that the order is the first step in the eminent domain process.

In addition to the public use debate, there is a documented tendency to under compensate owners of condemned property. The Supreme Court has long held that owners must get “fair market value” compensation, which critics say fails to account for the “subjective value” that many attach to their land over and above its market value. For example, a homeowner who has lived in the same neighborhood for decades places value on the social ties formed there, while a small business could have established a network of clients that would be hard to replicate elsewhere. Studies also show that owners often don’t even get the fair market value compensation that the law requires.

Alder Lisa Rasmussen, who represents Dist. 7, said the land acquisition necessary would only rely on easements to address utility issues. But Jacobson responded by pointing out that even those easements are still an interest in land, which could be acquired through other means.

Kilian asked that the city attorney explore the issue further.

The multi-use trail is planned along 72nd Avenue from Packer Drive to International Drive. Prior to last week’s meeting, Wausau’s Capital Improvements and Street Maintenance (CISM) Committee and Plan Commission approved an order that would have allowed the City to “relocate or change and acquire certain lands or interests in lands” for the trail. Both bodies had previously approved the temporary and permanent acquisition of lands for the trail project unanimously.

The council voted last week to table the issue for two weeks to allow for input from city staff. But a special meeting was since set for this week.

The meeting will be held at 6:15 p.m. Tuesday at City Hall, 407 Grant St., Wausau. Access the meeting materials at this link. Members of the public can attend remotely by calling 1-408-418-9388. The access code is 2482 494 6300 and the meeting’s password is cVj4MRJWv69.