By Robbie Webber
The recently passed Wisconsin state budget contains an amendment that removes the ability of local communities and the state DOT to use eminent domain for bicycle and pedestrian infrastructure. This provision, added anonymously at the last minute and passed by the legislature without discussion, will make it much more difficult to construct or even plan for paths and sidewalks that connect destinations and facilitate active transportation.
The amendment, item 17 in the transportation bill, reads in part:
“Prohibit any entity with the power of condemnation from using that power for the purpose of establishing or extending recreational trails, bicycle ways or lanes, or pedestrian ways.”
The amendment does not restrict the use of eminent domain to construct roadways but may mean that bike lanes and sidewalks would not be included if they cannot be constructed in the existing right of way. However, some have questioned whether the wording is muddy in this respect.
“If the purpose of the project is to widen a road, and sidewalks and bike lanes are part of that project, then it could be argued that the condemnation is for the extra width needed for motor vehicles, not for pedestrian and bicycle facilities.” says Beth Osborne of Smart Growth America.
However, this provision will certainly make it very difficult for communities or the state to even plan for new facilities outside the roadway right of way. Planning and preliminary engineering are often costly, and many communities will be unwilling to invest in projects that they are not certain will be built. A single property owner will now be able to hold up a project or demand an unreasonable amount for an easement, knowing that the community or state will be unable to condemn the land needed.
Madison Mayor Paul Soglin identified millions of dollars of planned and future projects in the city that could be affected, including several important projects that will allow safer walking and bicycling to jobs, schools, shopping, and other daily needs. Just four of the city’s planned road projects that included sidewalks, bike lanes, or separated paths total $40 million. The city uses condemnation several times per year, often to add sidewalks, curbs, and gutters to areas that were previously rural land and are now being developed.
Other municipal and county officials across the state weighed in that long-planned projects will be threatened in their communities, including paths that are planned to fill gaps in a network of bike trails that have drawn visitors to the state. A state representative from central Wisconsin hand delivered a letter to the governor asking for the item to be vetoed. Wisconsin allows line item vetoes by the Governor, who removed 99 other items, before signing the budget. However, this language remained.
Robbie Webber is a Senior Associate at SSTI.