"Overlay Protection District" -- Eminent Domain for a Maybe

Doug and Ruth Peters of Wentworth are having a little dust-up with the Lake County Commission. (The latest details come from MDL and KJAM.) The Peterses live on the north side of Highway 34, the object of great hopes among Madison's movers and shakers, who feel there's so much moving and shaking between Madison and Colman that Highway 34 needs two more lanes to contain it all.

Evidently there's some moving and shaking in the Peterses' household as well*: they say they have a growing family and need more house. They'd like to add on to the north side of their house, away from the highway. While they're at it, they'd like to expand a shed eastward. (One can always use more shed space -- it's a sign of good capitalists, buying more stuff and keeping the economy moving.)

Normally, there'd be no problem here. The Peterses are not building any closer to the existing right-of-way, and they're not asking to put up a hundred-foot tower or a nudie bar. Usually the Peterses could just walk in to the zoning office, pay my friend Deb Reinecke the necessary fee, chat a bit, and get a building permit in the mail in a day or two.

In this case, though, the Peterses face a roadblock: an "overlay protection district." Lake County, in conjunction with the City of Madison and Moody County, has created this no-build zone along Highway 34 to prevent any construction that might get in the way of the possible four-lane-ification of the highway.

As things stand, if the state does grace us with two more lanes, the Peters homestead and a handful of other houses and farm buildings along the highway are probably toast. The overlay protection district simply caps the amount of bulldozing (and the concomitant owners' tears) that will take place.

Expanding the highway may be a good idea (and according to KJAM, the state DoT will weigh in today on whether it's a good enough idea to make the State Transportation Improvement Program for 2008-2012), but right now, it's still just an idea. When the state decides to build a road, it has the power of eminent domain to take private property, after fairly compensating the owners, to execute that decision. However, when the state hasn't made any decision, and when a project is just a twinkle in the eye of some local boosters, should local governments have the authority to impose "overlay protection districts," effectively restricting property owners' use of their land without any compensation? It would seem that if the state is the only agency that can build the road, only the state should have the power to take away the property rights along the proposed route, and then only when the road-building project goes from proposal to approved project.

Now the Peterses aren't totally forbidden from building: they are seeking a variance from the overlay protection district restrictions. Barring major opposition from neighbors, the commission can grant variances to any zoning regulation. However, Todd Kays of the First District Association of Local Governments said at the Tuesday commission meeting that the commission could propose a deal under which it would grant the variance only if the Peterses agree not to seek compensation for any additions if the state's bulldozers come a-knocking.

That suggestion (not yet acted upon by the commission) demonstrates how the overlay protection district is an effort by the county to take private property for potential public use without just compensation, which one of our favorite documents says is a no-no. If the state casts its decision and puts down the money to expand Highway 34, then let 'er rip. Pay the Peterses fair market value for their land and start laying concrete. But until the actual road-making-and-paying agency makes its decision, the Peterses should be able to invest in their land as they see fit. If they add $50,000 worth of space to their house and shed, and we have to compensate them that much more when we come through with the bulldozers, well, that's the price of building a highway, as well as the price of waiting around to make a decision and building the highway later rather than sooner.

The overlay protection district unfairly limits the Peterses' liberty to act to meet their current needs in favor of the county's hope that the state might do something with the highway sometime in the future. Unless and until the state makes a firm commitment to expanding Highway 34, the county should let the Peters family and other property holders in the overlay protection district build within normal zoning regulations as they see fit.
*I'm going to regret that line.