Eminent domain not imminent over West: Appleton WI Post-Crescent, 12/17/06

Appleton school official predicts fight on West athletic plan years out

By Steve Wideman

Homeowners fearing government officials may take their properties for sports facilities at a local high school could face a years-long wait before the matter is decided.

The Appleton school board has yet to discuss using eminent domain to acquire property near Appleton West High School as part of a plan by a school sports booster club for a new football stadium, tennis courts, track and other outdoor facilities, said Supt. Tom Scullen.

Eminent domain is a process by which a unit of government can legally take private property, with compensation to the property owners.

"Fundamentally, we can't do anything. We don't own the properties," Scullen said this past week. "In my opinion, we are years away from a confrontational approach."

On Wednesday, the Common Council is scheduled to consider approving the plan in concept, paving the way for the West Terror Backers to begin a campaign to raise $3 million to buy and demolish 21 homes and turn the property over to the school district. The district would spend about $1.5 million to make the proposed improvements.

Last week, the city's Plan Commission endorsed the idea on 5-1 vote.

Owners of five of the homes have signed on to a lawsuit demanding the booster club abandon fundraising and other activities promoting the plan.

"They are going to have to throw us out of our house. They'll have to invoke eminent domain," Gene Hoks, 513 N. Mason St., one of the litigants, said Thursday.

The situation in Appleton meets the letter of public domain law, but the community must judge its moral implications, said Michael Burayidi, coordinator of urban and regional studies at the University of Wisconsin Oshkosh.

"The intent of eminent domain is to give power to government to take private property for a purpose promoting the public good. The case in Appleton directly meets the public use requirement of the law," Burayidi said. "It will not be a private person using the land."

But the school district will have to weigh the benefit to the school against the loss to the homeowners and community, he said. "Eventually it will boil to what the priorities are in Appleton."

Terror Backers president Anne Levandoski would not comment this past week on eminent domain, but said she remains optimistic that negotiated agreements can be reached with the property owners.

"We are hoping we can make agreements with all the homeowners so everyone is happy with the price they get for their homes," she said.

Scullen said he expects any decision on using eminent domain, if it comes down to that, to be made by a future school board.

"It is our clear preference that the boosters work with residents to see if they can come up with fair market prices for their homes," Scullen said. "It has been my experience that it is far better to work with people and negotiate."

Mayor Tim Hanna, who also serves as the Plan Commission chairman, said the city will not pursue eminent domain because the West project is not a city project.

"It's important for people to understand the city has no role in the project, including financing, acquiring land or using eminent domain," Hanna said.

"I don't remember when the city has gone through the eminent domain process to acquire property. We've always been able to settle with property owners."

Hanna said that if the boosters eventually acquire property for the project and turn it over to the school district, school officials would have to seek rezoning of the sites from residential to institutional use.

Lorn Dilley, an Appleton attorney hired by Hoks and six other homeowners to represent them in attempts to block the possible taking of their homes, said he is angered that school district officials "are going to make these homeowners wait an indefinite period of time to see if they can keep their homes."

"It is terrible for the school board to avoid the issue of eminent domain," Dilley said. "It is necessary to make a decision now. If they are not going to use eminent domain then the project should stop immediately because the boosters have said they need all the properties for the project."

Dilley said he represents a third of the homeowners "and they are not going to sell their homes."

"They told the Terror Backers that in writing," Dilley said. "The only way they are going to kick these people out of their homes is to use eminent domain."

Dan Haen, 703 N. Mason St., was an original plaintiff along with Hoks in the lawsuit, which is pending in Outagamie County Circuit Court.

"I worry about my house being taken (through eminent domain)," Haen said. "Sure, they (boosters) would relocate me and find me another house, but I don't want to move. I don't want to sell my house."

Alan Gibson, 731 N. Mason St., who recently joined Hoks and Haen in the lawsuit, said he fears eminent domain "because no one will say whether they are going to use it."

Scullen said Wednesday if some homeowners do not want to sell, the project could start in piecemeal fashion.

"It could be started in different areas to avoid the homes. We (the school district) are not going to buy the homes," Scullen said.

Gibson said the possibility of his home being surrounded on three sides by school property doesn't bother him.

"Do I mind if they build around me? No. I enjoy having the school in my back yard," Gibson said.

"All the school district or city have to do is tell me they won't use eminent domain and I would sit back and be happy."

Appleton WI Post-Crescent: http://www.postcrescent.com