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Waukesha resident doesn't win case against Department of Public Works Board

Didn't think he had to maintain lawn, sidewalk near property

Dec. 30, 2013

Troy Hendrickson said he's fought for two years to appear before the Department of Public Works to have them hear his case.

At last month's DPW Board meeting he finally got his chance to state why he shouldn't have to maintain the area west of his property on 307 Lemira Ave.

But the DPW Board didn't agree with him and as a result, he and his attorney, Christopher T. Koehnke, left the meeting discouraged by the outcome.

"It's unfortunate but I'm not seeing anything here that says it's not your responsibility to maintain this because it's a right-of-way," said Alderman Joe Pieper. "It's not a lot."

Whether this parcel was labeled a "lot" or a "right-of-way" was at the center of the debate that lasted more than an hour.

For 17 years, Hendrickson said he did not have to mow the grass and shovel the snow on this stretch of land near his home, which is on the corner of Lemira Avenue and Delafield Street.

A two-year fight

But two years ago — Aug. 26, 2011 — he received a letter from the city's engineering technician Dale Evans saying that it would no longer maintain this area near his property, as required in the city ordinance.

Hendrickson was then given another letter from Evans on Jan. 6, 2012, saying that after consulting with the city attorney and city Planning Department it was determined that the city right-of-way that is adjacent to Hendrickson's property on the Delafield Street side doesn't meet the minimum requirement under the city's zoning code to be considered a buildable lot.

It's considered a public street right-of-way, Evans concluded.

But after a complaint was sent to the DPW about Hendrickson not shoveling snow on this area, he was fined. Hendrickson said he only received a fine so he could appeal the DPW's decision.

And he questions how the error persisted for 17 years.

Hendrickson said when he bought his house he was told that he did not have to maintain this area. At the meeting, Director of Public Works Fred Abadi said this property was most likely previously maintained because of a clerical error.

Clerical error persisted

Abadi said when the city reconstructed a portion of Delafield Street in 1976, a part of that road was widened and a parcel was taken out. However, the city never reclassified it in its clerical reports that it was right-of-way.

"My gut feeling is it was an oversight," Abadi said. "It used to be a parcel there. The city dedicated the entire parcel as a right-of-way and it was just an oversight. I think that's an easy fix to make that correction. It should have been corrected back in 1976. The right hand didn't talk to the left hand."

Abadi added "this is not a unique location. We have many of these all over the city and it's the property owner's responsibility to maintain, especially those that have a corner lot. Is it convenient for property owners? No it is not. But this is not a unique situation. There are many other examples where property owners are responsible to maintain the sidewalk even though there's a wide section behind the sidewalk and some have to maintain the grassy area. In many of them, they are much worse than this one."

Alderman Eric Payne, a member of the DPW Board, said "the reason it was maintained is because no one questioned it." But he added that finally someone questioned it and I can see why (Hendrickson's) shocked at it."

Fighting the ordinance

Koehnke, however, continued to question the ordinance.

"If we're looking at city ordinances in question this parcel lot is owned by the city and any fees should be charged to the city, not Mr. Hendrickson," Koehnke said. "Based on where the property line is, his property neither abuts, fronts or adjoins that sidewalk and if you were to look at the city's tax roll that parcel is indicated as Lot 1 owned by City of Waukesha. Mr. Hendrickson's property is Lots 2 and 3. So essentially the city's own tax records says this parcel is deemed Lot 1 owned by the City of Waukesha.

"If we're just working off the wording of the city's ordinance based on the tax records the city keeps, this parcel, this lot is owned based on the city's ordinances by the city. Any fees for maintaining it should be charged to that lot which is owned by the city. Not owned by Mr. Hendrickson. He's lived in residence for close to 17 years. This is the first year he's either had to shovel snow or mow the lawn on this property. He's only now starting to get billed because he hasn't maintained it."

Reaching a compromise?

But Abadi continued to correct many at the meeting saying this is not a "lot" and because it's a right-of-way it's Hendrickson's responsibility.

"It now puts a big burden on me to maintain a 150-feet-by-49-feet parcel and 200 additional feet of sidewalk for what they call a clerical error?" Hendrickson said.

Payne made a request that since he is now being made to shovel this area that the DPW make sure the sidewalk is in good shape and fixes any repairs that are needed. Abadi said the DPW would waive any fee if Hendrickson agrees to take responsibility.

Abadi said he was going to have it inspected and that Hendrickson would get "a sidewalk in good repair."

But after the meeting, Hendrickson said he wasn't sure if he would accept the city's offer.

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