A $600,000 Battle: City Settles Lawsuit by Buying Two Homes

Two Brookfield couples will be shopping for new homes this spring after settling a longstanding dispute that ended with the city buying their existing homes.

The final tally for the city after paying fair market value for the two houses and the couples’ legal expenses will come to nearly $600,000.

Craig and Danielle Husar, 785 S. Calhoun Rd., and Robert and Karen Marsh, 835 S. Calhoun Rd., sued the city in late 2007 after it condemned parts of their properties for widening Calhoun to four lanes, and cut off their driveway access to the thoroughfare.

“We had to acquire a lot of pieces of properties,” City Attorney Karen Flaherty said. “With the two parcels owned by the Husars and Marshes, the road grades required the engineers to reorient their driveways from Calhoun to another street.

“The Husars and Marshes objected.”

Did they ever.

The homes are on a high ridge overlooking what was once a sleepy country lane, with long lawns and drives sloping down to the road.

Now their front yards end abruptly in a massive retaining wall that drops straight to the edge of the widened road.

So they began a wearing 3½-year legal battle that in the end proved you can fight city hall.

“It wasn’t just that it was unacceptable,” Craig Husar said in an interview. “It ultimately was illegal.”

At issue was whether the city could condemn portions of the properties besides their road frontage and force the families to share a driveway through properties not their own. In 2008, Waukesha County Circuit Court Judge Michael Bohren ruled in favor of the city, saying that the creation of a shared private drive was acceptable.

The families persisted, however, and an appellate court reversed the decision and sent the case back to Circuit Court. The appeals court said, in effect, the city through condemnation had created not a private drive but a public right-of-way, depriving the owners of their fundamental right to control access to their properties.

With that finding, the Husars and Marshes demanded the city buy them out of their homes, and on the advice of Flaherty and outside legal counsel, the Common Council on Feb. 1 voted unanimously to do just that.

“Overall, we are pleased with the city’s final decision,” Craig Husar said. “They did meet our terms.

“My wife and I are in disbelief that it’s finally over, and we’re looking forward to moving on with our lives.

“But it’s a bittersweet victory, if you can call it a victory at all,” Husar said. “It was a situation that was unavoidable.

“We never had any intention of selling the house.”

The Husars will receive $260,000 for their home and $41,500 in legal and appraisal costs. The Marshes will get $235,000 for their home and $49,500 in costs. Each family will also be paid $3,000 for moving expenses, for a total of $592,000.

The city also settled smaller disputes with six other property owners who challenged the value they were offered for changes to their access in the Calhoun Road widening. The resolution of those matters cost the city another $69,575.

“These were people who were not happy with what is called the jurisdictional offering,” Flaherty said. “In most cases, it involved things related to the road design, like new traffic islands that prevent you from making a left turn into your driveway from one direction.”

Flaherty said that officials had not discussed how the city would dispose of the Husar and Marsh homes, but they will likely be put on the market in the hope of recovering as much money as possible.

“We don’t really want to be in the real estate business,” Flaherty said. “Surely, the decision will be to not hold on to these properties longer than necessary.”

The closing of sale on the two homes is set for June 1, with the city taking occupancy July 1.

The Husars, who have been in their house nine years, intend to look for another home in the city.

“We hope to remain in Brookfield,” Craig Husar said. “We’re very happy here.”