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Opinion: Revised rules don't 'take' property

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ELLSWORTH -- Despite doubts raised five months ago, a proposal to amend the St. Croix Riverway Ordinance will come back to the Pierce County Board unchanged since it was tabled in February.

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Both the Land Management Committee and the Finance and Personnel Committee voted to again forward the amendments, which no changes, to the full County Board, which meets next week.

In February, former County Board member Carl Braunreiter, who served as an alternate on the land use advisory group that offered input as state agencies reviewed Wisconsin Administrative Code NR 118, argued that ordinance prohibitions limiting repair of structures on the bluffs amount to a "taking" of the property.

He warned that property owners will fight back if they're not allowed to maintain their buildings. Braunreiter said Wisconsin Department of Natural Resources officials have made it clear they want the cabins or houses inside the bluffs gone. But, he said, the county shouldn't have to pay the cost of taking that property.

Braunreiter urged the board to add language that would give automatic variances to allow repairs "if the state does not post bond for full value of the land and potential legal costs within 10 days of the permit application."

The state rules, adopted in 1980 and amended in 2004, establish land use and development standards for property on the Wisconsin side of the Lower St. Croix Riverway.

The new county law will incorporate changes in NR 118. It affects property primarily in the town of Clifton.

Braunreiter said the rules apply to only a couple of dozen houses, mostly old cabins.

"Believe it or not, these homes are worth a million or two a pop," he said, explaining that their location, rather than size or condition, determines their value.

In trying to decide whether or not to make the change suggested by Braunreiter, the Land Management Committee consulted lawyer Bill Thiel, who has advised the county on similar issues.

According to a staff report for the June 21 Land Management meeting, Thiel advised that the language proposed by Braunreiter would tie the hands of the Board of Adjustment.

Also, according to the report, Thiel advised that it isn't a legal "taking" to require that a nonconforming building be removed at the end of its useful life.

The report says, "The common law on property rights does not compel that, once built, a nonconforming structure shall be allowed to remain in its nonconforming location forever, nor that the owner be allowed to renew it and extend its life by rebuilding its support beams, foundation or other essential components, without which the structure may collapse.

"Such a structure, by definition, has limited value and when something, such as the foundation, crumbles, its value is essentially considered to be nothing in the eyes of the law."

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