Basically, the area in dispute was once a river. This area, known as ‘reclaimed riverbed’ makes up a portion of the island. The proposed resort will occupy a portion of this public land.
At dispute is the fact that the multiple-owner structure of the funding of the condominium project would violate the previous agreement that had been in place since the original hotel was built.
The stalemate over the land use dispute can be resolved by the city since June 23, 2005.
With the new definition of the words “public use” as tested under the case known as Kelo versus the City of New London, decided June 23, 2005 by the supreme court of the United States, its clear the city of Oshkosh has within its power of eminent domain the ability to take the disputed public land on the North most part of the island where the Pioneer Inn once stood and convert the land to private ownership for the purpose of economic growth and does not need the approval of the DNR or any other authority.
Before this case, eminent domain was generally accepted to be limited to:
1) Areas where the land would go from private use to public. Examples would be for the construction of a road, bridge or park.
2) Areas that were blighted (run down, and in disrepair.) Examples would be a inner city slum that is tore down and rebuilt as a nice private owned apartment complex.
With the above verdict you can now add a third case where a city can exercise its powers of eminent domain:
3) Where the transfer of land ownership to private ownership will result in a positive economic impact for the area. Or in legal speak "The court found that if an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed (even if not blighted) urban area, it qualifies as a public use."
During the trial before the Supreme Court Justice Scalia suggested that a ruling in favor of the city would eliminate "the distinction between private use and public use" of land. One can only conclude that there is no longer a distinction between private and public land ownership and use. All land ownership and use is now public as defined as what would benefit the public the most.
Even in the writings of the dissenting opinions of Sandra Day O’Connor wrote "Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." She argued that the decision eliminates "any distinction between private and public use of property — and thereby effectively [deletes] the words 'for public use' from the Takings Clause of the Fifth Amendment".
Judge Richard Posner published an Kelo decision analysis. Judge Posner concluded eminent domain can properly be used to address holdouts even in transactions involving private parties, such as utilities or other entities. Clearly the DNR would be the other entity in this case.
If you are still reading this, you really got to pay attention to this next part. “Soon after the decision, city officials announced plans to charge the residents of the homes for back rent for the five years since condemnation procedures began. The city contends that the residents have been on city property for those five years and owe tens of thousands of dollars of rent.” So as soon as the city of Oshkosh makes a claim to the land it can charge the DNR by month over any time the DNR chooses to dispute the claim.
It’s a win-win for the city of Oshkosh. As soon as it makes a claim for the land it can either get it or get rent for it.
How long it will take the local politicians to realize they don’t need to listen to the DNR anymore is anyone’s guess.
Boat - SeaRay Sundancer 240
Port - Slip #309, Pioneer Marina, Oshkosh, WI
Lisa
