July 17, 2008
City grants delay on undocumented alley
by Brian Wilson
A stretch of gravel connecting the Emmerich Drive cul-de-sac with Hwy 64 near Thomas Floral, looks an awful lot like an alley and has been used for decades as an alley by past and current residents in the area.
The problem is the alley doesn’t exist. At least it doesn’t exist where it is important, namely on the land-records paperwork filed at the register of deeds office in the Taylor County Courthouse. The fact that the city crew grades and plows the undocumented alley and that some of the properties along the gravel stretch have garages accessing it, is of secondary note. According to city attorney Ken Schmiege, when it comes down to it the alley was never officially dedicated to the city.
The issue is coming to light now only because a city ordinance requires all alleys to be paved and this undocumented alley is the last one on the list to be done. The question for the city council is if the city owns the alleyway they can proceed with paving it and charging the cost back to the property owners, if the city doesn’t own it then the paving question is moot, but there are a bunch of other questions that crop up such as the taxes property owners paid for land they didn’t get to use or how others will get access to their garages.
Some property owners want the city to give up claim to the alley altogether so that they can get use of the additional property currently being used as an alley — albeit an undocumented one to allow an adequate amount of road frontage on the corner of Hwy 64 and Washington for potential commercial development.
So if the city doesn’t own the alley, what’s the big deal?
“It is complicated,” said Mayor Mike Wellner at a committee-of-the-whole meeting Tuesday night.
While the city does not have a clear formal dedication of the alley on file and none of the titles on the adjoining property make reference to the alley, there is the fact that despite its absence in the paperwork, the alley does exist. And that depending upon interpretation of the law, the city may have a defensible claim to ownership of the alley either under the adverse possession statutes or under what Schmiege described as a common law dedication.
The issue could ultimately end up being decided in a courtroom with property owners able to call for a review whichever way the city decides to go with the undocumented alley question.
Attorney Scott A. Jackman, of Daubert Law Firm in Wausau, is representing Les and Esther Bix and their children, who have an “L” shaped lot along the alley. And while no formal surveys have been done, the belief is that the entire alley width is on their property. Jackman raised the concern that if the alley is dedicated, it would reduce the lot from 74 feet of frontage along Hwy 64 to only 58 feet of frontage, which would make it an unbuildable lot for the future commercial use the owners would like to see there. Jackman said he is not so sure the city has a legitimate claim for ownership of the alley, but at the same time said his clients want to work with the other property owners along the supposed alley to reach an easement agreement that would continue to allow access and handle maintenance costs but take the alley out of city hands entirely. “We are going to be contacting the property owners,” he said.
Jackman’s only request to the city council was for more time, since he was just recently retained by the property owners and had not had adequate time to review all the materials.
Schmiege noted it would likely be in the best interest of the city if the property owners could work it out among themselves and supported giving more time to the process. The alley is not scheduled to be paved until next summer anyway, so there is time for the city to make a decision.
In the end, aldermen voted to give Jackman and his clients more than the month they asked for and set August 25 as the date for the issue to come back before the council.
Resident Jamie Wilson raised the question of the taxes property owners have been paying on the strip of land without being able to use it and if that improperly assessed tax money could be used to offset the paving costs. Schmiege said that first the city needed to resolve the issue of who owns the alley.
In other business, the council:
´ Received a request from Pat Shereda for the city to improve a rock retaining wall in front of his property at 419 Central Court. The wall is on city right-of-way and was put in by Shereda when Central Court was developed, he described a hand-shake agreement with the late Bill Tylka that allowed Shereda to put in the wall. The wall is starting to show its age and Shereda is concerned that the rocks are coming loose and could fall into the road. In addition, weeds and trees are beginning to grow up in the wall. He asked the city to consider options for what could be done to improve the area. The council took no action and will consult with the city attorney to see how the city should proceed.
´ Recommended approval of computer, Internet, and e-mail policy for the city. The new rules spell out the acceptable uses of city computers and e-mail and was reviewed by the city’s labor attorney. Fales explained it is a hybrid of the county’s usage rules and existing city policies. In general, the policy spells out common-sense prohibitions such as using e-mail to transmit sexual image or to harass other employees and limits Internet usage to “job-related activities.”
´ Recommended applying for a cost-sharing Waste Reduction and Recycling Demonstration grant with the Department of Natural Resources to pay up to half the cost the city’s concrete crushing operation. The city recycles concrete, asphalt, bricks and other material for use in road bed construction.
´ Recommended increasing the cost of garbage collection and recycling in the city by 32 cents per month beginning in January 2009. The annual increase helps cover the contracted expenses for waste hauling.
´ Approved giving a Class B beer license to Ku Dong, Inc. which is doing business as Bejing Chinese Restaurant with Xiao Shou Dong as the agent. The restaurant recently changed ownership and the previous owners had a full tavern license which was not reapplied for this year. The new owner only sought a beer license.
´ Received a letter of thanks from Dalton Tessner and Isaac Tanata for the new playground equipment in the city park. Wellner noted that the city has received a record number of positive comments regarding the decision to replace the aging wooden playground equipment with new equipment.
