Supervisors adopt resolution on eminent domain

JEFFERSON — The Jefferson County Board of Supervisors on Monday voted 23-4 to approve a resolution calling for a delay in private companies utilizing the eminent domain law until the state Legislature has conducted a legislative review of that law.

In its final form, the resolution — approved after public input, an amendment, a brief recess to research a legal issue raised by the amendment and then an amendment to that amendment — had stronger language included in it than what was initially presented to the board.

The issue of the eminent domain law drew a large contingent of supporters and protesters at the board of supervisors’ November 2017 meeting. About 40 employees of Enbridge, an international oil and pipeline company that has pipelines in Jefferson County, other parts of Wisconsin and in other states, urged the board against supporting a more stringent resolution introduced that evening that referred specifically to Enbridge and originally was based on a resolution created by the Wood County Board of Supervisors. There also were numerous supporters of that more stringent resolution present.

The discussion that night concluded when the board sent the resolution back to the Executive Committee (formerly known as the Rules and Administration Committee) for further review.

On Tuesday, no Enbridge employees or supporters were present; however, seven county residents spoke on the resolution and 28 people wearing “no eminent domain for private gain” stickers were on hand to show their support.

The original resolution introduced Tuesday noted that Wisconsin statutes, in 2015, were amended so eminent domain powers — which historically allowed government agencies, utility companies or other statutorily designated corporations to condemn and acquire private land for a greater public good — have been granted to businesses that transmit oil or oil-related products through pipelines. Those pipeline companies still need to have Public Service Commission approval to invoke condemnation authority; however, they no longer have to be based or licensed in Wisconsin to seek approval.

The resolution noted that “eminent domain has historically been used sparingly for ensuring the public good with a provable need and just compensation,” but since it has now been expanded so that business entities can condemn private property, “the future impacts on owners of private property could be significant.”

The resolution called for the state Legislature to conduct a “legislative review of the current eminent domain law” that also will “assist the Legislature in determining whether or not further amendment of the Wisconsin eminent domain law is necessary.” It also asked the review to cover “the current and future impacts on owners or private property.”

The residents who spoke prior to the board’s vote claimed that the resolution as presented was not nearly strong enough to send a message to state legislators.

Linda Ottenbacher said that she lives adjacent to an Enbridge pipeline and that the issue was not about oil, but about the law.

“A private business should not be able to take our home and force us to move,” she said.

She presented a petition containing the signatures of 120 people agreeing that the law needs to be changed.

Jae Ames spoke about how the Executive Committee did not take residents’ opinions into account, saying that the “decision had already been made” by the committee to support the weakened resolution presented. He warned the board that voters would remember its decision.

John Peoppel said that he fought Enbridge for more than seven years and paid $80,000 in legal fees.

Paul Wehling quoted Thomas Jefferson on the equal rights of every citizen and asked the board to support a moratorium on eminent domain petitions as at least four other counties in the state have done. He added that it “does not make sense” to ask state legislators to review the law that they intentionally weakened.

“The fox is already in the hen house,” he said.

Aaron Buchannon re-emphasized that point, noting that the resolution “needed to be thought out better.”

Ronni Monroe said that the board should add something to the resolution so that landowners’ rights and the “safety of the people in the corridor” are protected.

Dianne Heerhold noted that there was a solar energy company seeking to put a very large solar panel facility in the northern part of the county that was not seeking eminent domain powers.

Eric Kernan questioned why the board was not standing for its citizens. Noting that he was once told he should talk to state representatives and county supervisors, his reply was, “We are citizens here. We live here. We pay taxes here, and we need help here.”

He also said it was wrong to assume residents were not also contacting their state legislators over the issue.

Once the resolution was introduced to the board, Supervisor Walt Christensen offered an amendment that asked Governor Scott Walker to direct the Public Service Commission to place a moratorium on eminent domain petitions.

Supervisor Jim Mode asked whether the governor has authority over the commission. This led to a brief recess so assistant corporation counsel Yalena Zarwell, filling in for corporation counsel J. Blair Ward, could research the answer.

Upon reconvening, Zarwell said that her initial research indicated that the governor did not have authority over the commission; its authority came from the Legislature.

Mode then asked to have the issue sent back to the committee once more; however, since the amendment still was on the floor, the board had to act on that first. During the recess, Christensen reworded his amendment expecting Zarwell’s finding, and he offered it as an amendment to the amendment.

His new version did not change anything in the existing resolution, but it did add a clause that read, “Additionally, the board of supervisors further requests a delay in granting petitions to condemn property by eminent domain that would not have been allowed prior to 2015 until the Legislature has conducted a legislative review.”

The board’s vote on that amendment passed 20-7. Mode once more called for the resolution to be sent back to the committee. That motion failed 13-14, meaning that the board had to vote on the resolution that now included Christensen’s amendment.

During the discussion, Supervisor Steve Nass noted that the board had to do something even though it might already be too late, citing that Foxconn already has used eminent domain powers. After Nass spoke, the board took its vote, which led to the 23-4 passage. The supporters in the room literally applauded the result.

Voting against the resolution were Supervisors George Jaeckel, Matthew Foelker, Jim Schroeder and Roger Lindl. Lindl was appointed to be the District 24 seat earlier Tuesday as the replacement for Alyssa Spaanem, who resigned from the board on June 29.

Supervisors Dwayne Morris, James Braughler and Peter Hartz were unable to attend Tuesday’s meeting.

A copy of the resolution will be sent to Governor Walker, all the elected state representatives who represent Jefferson County and the Public Service Commission.

After the meeting, Christensen said he was happy with the outcome.

“I think anybody who listens to the difficulties and the stress that the people whose land is on the (pipeline) route that may be under eminent domain threat or nearby it, they do not know what to do with their land,” he said. “They have lost some of the ability they own outright or are paying a mortgage on. They do not have all of their control. That is an awful position to be in.”

He added that in the negotiating process for eminent domain, “the state has given all the high cards and face cards to whoever has the ability to request eminent domain, while the property owner have the low cards. Given that, these are my constituents. I live in a district that a lot of people may be affected by eminent domain. I think it is important for me to listen to them. I did not get any opposition to the amendment, so I went ahead with it.”

Board Chairperson Jim Schroeder found himself in the rare position of being on the losing side of a board vote. He was asked after the meeting if, despite his opposition to the resolution, this was still the best decision for the board to have made.

“Well, the best option is always the option that the majority approves,” Schroeder said. “That’s why we are here: to establish the will of the majority while respecting the rights of the minority that need to be heard. So, democracy at work.”

In other matters Tuesday, the board:

• Approved a resolution calling for more state support for the Office of Public Defenders. 

The resolution noted that public defenders’ offices throughout Wisconsin are understaffed, and when necessary, private attorneys are appointed to serve as public defenders. However, Wisconsin has the lowest compensation for those appointed attorneys in the nation, which is $40 per hour, a rate that has remained static since 1995. Thus, many private lawyers are not willing to assist the Office of Public Defender and counties across the nation are forced to pay much higher per-hour rates for those private attorneys to serve as public defenders.