A dispute over what qualifies as blight is at the heart of Oak Creek’s possible use of eminent domain to take a farm and clear the way for development.
“Some people may say the land should be condemned because it’s full of garbage,” said Valentine Vogel, who lives across the street from the farm on South Howell Avenue. “Well, what do you think a farm is?”
The farm, owned by 94-year-old Earl Giefer, is not contaminated and does not pose a public health risk to the community. But the city is taking the first step toward using eminent domain to acquire the farm.
To do that, the city would first need to declare the farm blighted because the property is poorly maintained and inconsistent with development strategies.
Vogel said he sees equipment and barns common to farms on Giefer’s property rather than a blight. Giefer’s friends and family agreed Wednesday night when they asked the city not to acquire the private farm.
Giefer no longer lives on the land because the house there burned down in 2008, but he still tends cows and farms the property, said Susanne Mordja, Giefer’s niece.
Giefer’s property is in the middle of an area the city has slated for redevelopment through a tax-incremental financing district. The city is considering using eminent domain because the farm could discourage development on neighboring land owned by Milwaukee-based Wispark LLC, said Doug Seymour, Oak Creek director of community development.
Oak Creek and Wispark signed an agreement to buy a 225-acre site surrounding Giefer’s land. Wispark is slated to develop 169 acres, the local school district will build a new school on 50 acres and the rest of the property will be preserved. Under that agreement, the city agreed to consider acquiring Giefer’s 24.4-acre farm.
Seymour said the Oak Creek Community Development Authority does not have immediate plans for the property if it is acquired through eminent domain.
“The CDA and the Common Council needs to ultimately balance the rights of the property owner versus the rights of the overall community,” Seymour said.
The Oak Creek CDA has scheduled a June 2 public hearing to consider declaring the property blighted. The property meets the legal definition of blight because it is not well maintained, has an unpaved driveway, is inconsistent with the community’s growth and is underused, according to a report commissioned by the city.
The public authority to condemn and acquire land was originally a way to deal with such public health threats as rats, said S. Richard Heymann, adjunct professor of law at the University of Wisconsin-Madison.
But governments increasingly use the power to acquire land to boost development with the justification the economic growth helps the entire community, he said.
“Now it is not so narrow and for the purpose of considering broader issues than the more traditional, easy issues like public health,” Heymann said.
There is not much case law on the subject because it is a relatively recent trend where governments are using blight and eminent domain to encourage development, Heymann said. The landmark case was the 2006 Kelo v. City of New London U.S. Supreme Court decision that determined governments can use eminent domain to acquire land with the goal of promoting private development that benefits the broader community.
Vogel said he wants to know how the property can avoid the blight designation. Whatever needs to be done, he said, he would do it so Giefer can keep the land.
“If we can move ahead and clean the property to the state specifications,” he said, “then would they leave their hands off the property?”