Vote follows years of disputes

By Angie Landsverk

The couple who donated a 22-acre parcel to the city of Waupaca for the creation of the Oz Natural Area will get the property back.

When the Waupaca Common Council met on Sept. 19, it voted unanimously to return the land to Kari Esbensen and Russ Butkiewicz.

“This is a sad day for me. This is not what we wanted to have happen,” Esbensen said before the council voted.

They formally requested the return of the land in a Sept. 13 letter to the council, citing years of legal disputes, discussion and negotiation with city staff and the Wisconsin Department of Natural Resources (DNR).

“I understand you are hurting and why you are hurting, and I feel bad,” Mayor Brian Smith told Esbensen. “We’re trying to make this bad situation as good as we can.”

Butkiewicz and Esbensen want to rejoin the 22 acres to its original parcel, an almost 13 acre-parcel they retained at the time of their donation.

They then want to restore the entire 34 acres under the objectives they had for the Oz Natural Area.

The couple also wants to detach the land from the city of Waupaca and request the town of Waupaca accept it, which is where the property was prior to their donation.

The city received DNR stewardship funds for the property, and the grant required the placement of a restriction on the property.

City Attorney John Hart said this stipulated that the city could not sell, lease or assign the property without the DNR’s approval.

As a result of the couple’s request, the city had to apply for a conversion and transfer of the Stewardship grant to another property in the city.

City Administrator Henry Veleker said the DNR is releasing those requirements from the property and will give the city three years to complete the conversion.

“The stewardship restrictions are off (the property) but ultimately, we have to put those on a piece of property of similar monetary value,” he said.

Since Butkiewicz and Esbensen indicated they want to return the property to the town of Waupaca, they would have to circulate a petition to detach the property from the city.

If presented to the common council, a three-fourths vote would be needed to detach the property from the city.
It would also take a three-fourths vote of the Waupaca Town Board to accept it back into the town.

History
When Esbensen and Butkiewicz decided to donate the property to the city 20 years ago, their primary focus was to protect the biological diversity of the site.

They also sought to provide low-impact educational opportunities there.

They donated the parcel to the Waupaca Area Parks Foundation in 1997 as a memorial to Esbensen’s father, Dr. Victor Esbensen, and to their friend Nancy Salan.

In 1999, the property was transferred to the city, allowing the city to apply for DNR Stewardship funds equal to half of the appraised value of the donation.

The parcel was appraised at $105,000.

Thus the city received $52,500 in Stewardship funds, which were to be used to develop and maintain the property.

The land is located on the corner of County Trunk K and Constance Road, and restrictive covenants outlined the goals of Esbensen and Butkiewicz.

Development and improvements on the property were limited to interpretive signs, a wetland boardwalk, restroom facilities, a parking area, an amphitheater, shelter, the River Ridge Trail system which was granted indefinite access, benches and other items approved by the Management Committee consistent with ecological and environmental educational purposes.

The 22-acre parcel was the site of the first segment of the River Ridge Trail.

Disputes
The couple’s concerns began in the early 2000s, after some stipulations related to the property’s restrictive covenants had yet to be honored.

That included failing to put a sign up on the property or creating a management committee for it.

Then Esbensen and Butkiewicz heard some of the Stewardship money had been spent.

In September 2002, they made their first request for an accounting of the Stewardship fund.

The city placed the funds in a community foundation account in 2004, after going into mediation with them.

When the couple met with the mayor in April 2004, he gave them a general printout for the account and assured them the money was all there.

While the printout was not itemized, they were tired from the process and decided to give the city another chance.

During the Sept. 19 council meeting, Veleker said the fund has a balance of about $37,000.

A few years ago, the couple again became concerned about the Oz Natural Area after the city and CAP Services’ Fresh Start Program brought forward the idea of creating an eco-park at the Oz Natural Area.

Constructing an educational center on the property and expanding a parking lot in the natural area concerned them.

They worked to stop the eco-park project there, and in June 2015, the common council voted to move the project to city-owned property by the East Gate Subdivision.

Around that time, Butkiewicz and Esbensen also rescinded access to the portion of the River Ridge Trail on their property.

In November 2015, they again submitted an open records request to the city, seeking financial records related to the Stewardship funds.

The following month, they received a response.

It was not financial records but instead a letter Jim Ash, the city’s former parks and recreation director, had written to Jeff Pagels, DNR government outreach team leader, on May 8, 1998.

In that letter, Ash wrote, “The former landowners have agreed to take off the restrictions and the property was appraised without those restrictions.”

They also learned the restrictive convenants were not listed on the title insurance policy issued to the city.

They had not agreed to remove the restrictive covenants.

Those restrictive covenants are recorded with Waupaca County’s registrar of deeds.

In 2016, they filed several open records requests with the DNR and met with attorneys from the DNR to review their documentation and explore options, including the return of the land to them.

In preparation for the Sept. 19 council meeting, they provided 15 pages of historical context and documentation to the council and on the final page, they noted the time it took them to investigate the matter and at their own personal expense.

“There is nothing worse than having to file complaints against individuals in one’s hometown. All we have ever sought was the truth and the expectation that people honor commitments they have made, in good faith and in accordance with the law.

“We have suffered many sleepless nights, anxiety, physical stress including stomach ailments, increased blood pressure and heart palpitations symptomatic of the ongoing stress and conflict associated with this matter. It is time for it to end,” they wrote.

Hart said their documentation accurately shows the relationship they had with the city for the last 15 years.

He said there is not a lot to dispute in it.

When the property’s management committee and donors advised the city that some things done to the property were inappropriate, the city removed those items, Hart said.

There has not been any significant development on the property during the last year or two, he said.

Considerations
All members of the council were present during the Sept. 19 meeting, and the discussion on the topic lasted an hour.

Esbensen and Butkiewicz also asked the council to consider eight other points, and the council’s vote included five of them.

• Parks and Recreation staff will till up the limestone trail, bring in topsoil if needed and restore it to natural grasses.

Aaron Jenson, the city’s parks and recreation director, said his staff has the equipment to do the work and will do so when it has time.

This will take place at no added cost to the city budget.

• The city will pay for the removal of the invasive Japanese Barberry on the property. The bid the couple received for the work was $10,500 from Rynish Forestry. The city will make the payment directly out of the Stewardship fund.

Jenson said if there is not a maintenance plan regarding that invasive, it will take over on a property.

Ald. Eric Olson said the city should have been working to remove it from the natural area.

Jenson said some of the Stewardship funds were used to remove invasive plants there. He said more of that could have been done if it had been a priority of the natural area’s ad hoc committee.

• The city will close the park during this transition time and will be responsible for signage and fencing.

• The city will publicly advertise that the park is closing for public use.

• The city will clearly note the boundary of the River Ridge Trail approaching the property from the west, as the couple has continued to have issues with people trespassing on the former trail segment on their property.

The couple also requested compensation of $16,553 in legal and related expenses, compensation for other fees and expenses not accounted for as of Sept. 13 and made a final open records request for all records in possession of First American Title Insurance, the Evans Division related to the Oz Natural Area.

The council did not include those three considerations in its vote.

Hart said the city has no legal obligation to pay for the couple’s attorney fees.

Esbensen expressed her disappointment with the city not recognizing the suffering, pain and thousands of hours her family spent on the matter.

“Citizens should not have to hire an attorney to have open records requests answered,” she said.

Esbensen said the city did a nice job mowing at the natural area and picking up garbage there.

“But most of the defense of that property has been us,” she said.

Before the council voted, Ald. Paul Hagen asked if there was any other pathway to a resolution.

Ald. Alan Kjelland, who made the motion to return the land, said based on how the city had overseen the property, he did not think so.

Kjelland also said the pain and suffering the couple experienced should be a topic for a separate discussion.

Several council members said they received one or two phone calls in support of the city returning the land to the family.

The mayor said returning the land was not an easy decision for any of them.

“It is a park, and it does get used. I can’t tell you how many. There are some who will no longer be able to use it as a park,” Smith said. “I’ve used it at times to just go there, and I’m sure other people have.”