Eminent domain case turns driveway into public road

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Two Brookfield homeowners are exchanging privacy for leverage in an eminent domain lawsuit after a court ruled their shared driveway is a public road.

Brookfield in 2008 took land from properties owned by the Husar family and the Marsh family through eminent domain for a project to widen Calhoun Road. As a result, the properties lost their driveways connecting to Calhoun, so the city that year built a shared driveway to serve both homes.

But the homeowners sued Brookfield, claiming the city slashed their property values by using eminent domain to acquire land and build a public street. The homeowners are asking the city to buy their entire properties, rather than just take portions of the land as Brookfield did through eminent domain, said Robert Roth, an attorney representing the Husars and Marshes.

A circuit court judge rejected the case in December 2008. But the Wisconsin District 2 Court of Appeals on Wednesday ruled the circuit court erred because it, at least partially, based its decision on the assumption that the road is private.

The appeals court ruled that when the city took the property through eminent domain and built the new driveway, Brookfield committed to making the driveway a public road.

The appeals court sent the case back to circuit court.

Property owner Craig Husar said he is pleased with the decision, but it does not resolve his problem with drivers and pedestrians turning onto his driveway and then turning around when they reach the dead end at his house.

“The driveway is 16 feet wide,” he said, “and it appears to be a road.”

Husar said he knows the driveway is technically public property, but he tells people it is private when he asks them to leave. So far, he said, nobody has challenged him on the point.

“We just make the best of our living situation here,” Husar said. “And until the courts decide what is proper, that’s the best we can do.”

A public road for a driveway could yield some side benefits for the property owners. Husar said that for the past 2½ years, the homeowners have tallied the cost of salting, snow shoveling and landscaping around the 400-foot-long road. He said he cannot say how much money was spent on the road because it may become part of the lawsuit.

Roth said he and his clients are still determining what the city’s responsibilities should be.

“My clients have had to maintain this driveway through a couple of winters,” Roth said.

Thomas Grisa, Brookfield’s director of public works, said the city has not plowed or maintained the driveway. He said he is not familiar with Wednesday’s court of appeals decision and cannot comment on how it affects the city’s responsibilities.

Grisa said city policy for road maintenance is not set in stone. He said the city tries to rebuild or resurface roads at least every 20 years and takes responsibility for some cars damaged by potholes on public streets.

Brookfield’s plowing policy forbids city trucks from plowing private property. But, under the policy, public works employees can be ordered to plow or spread salt and sand on all city streets during heavy snowfalls.

Husar chuckled over ordering the city to plow his driveway next winter, but said so far he has not called Brookfield officials for any issues with the driveway. He said a final resolution on the issue will depend on the lawsuit.

“I don’t know how close we are to a final judgment at this point,” Husar said. “But absolutely I think the city understands, and is being forced to understand, that what they did is not right, and they can’t just push a private property owner around like this.”

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