Residents prepare legal battle against Monterey Dam removal
JANESVILLE—Jim Chesmore's back yard includes a scenic view of the Rock River.
His property runs up to the water's edge, and he keeps a small boat near the shoreline.
That could change when the Monterey Dam is removed, and Chesmore and other riverfront property owners are preparing to fight that possibility in court.
The dam is scheduled to be demolished in summer 2018, narrowing the river between the Center Avenue bridge and the Racine Street bridge. Part of what is now the river bottom would be exposed along the back yards of about 40 residents.
Who would own the newly exposed land isn't clear.
According to a state Department of Natural Resources legal interpretation, the city would own the exposed land, DNR dam safety engineer Rob Davis said.
Part of the mid-1800s legislation that authorized the Monterey Dam includes language that the dam's owner must own all the land flooded by the dam's construction. Once the dam is removed and the water recedes, the newly exposed land would become the city's because Janesville has owned the dam since the 1960s, Davis said.
But the DNR isn't certain its interpretation is correct. It's possible ownership would have to be hashed out on a deed-by-deed basis, Davis said.
That's city attorney Wald Klimczyk's interpretation.
Klimczyk said he looked months ago at the deeds of several river properties that would see new shorelines after the dam is removed. Most of the deeds indicate the properties extend to the middle of the river. Property owners with such deeds, not the city, would own the newly exposed land, he said.
Some deeds might indicate the property extends to the river's edge on a certain date or the during the river's high water mark. Klimczyk doesn't recall seeing such deeds during his review, but "the city wouldn't obtain ownership automatically" of the newly exposed land after the dam is removed, he said.
It's the uncertainty that prompted Chesmore and other riverside residents to retain attorney Charles "Buck" Sweeney.
"Everybody has a different story, and that tells me when there's different stories, there's something wrong," Chesmore said.
Chesmore is trying to find his own deed and is encouraging neighbors to do the same. He said he's spoken to most of the 20 or so property owners along South Main Street whose yards touch the Rock River. They're on board with taking legal action should removing the dam threaten their properties, Chesmore said, but Sweeney represents only two neighbors so far.
Chesmore is the chairman of the Monterey Dam Association, a non-profit group of residents opposed to the dam's removal.
Chesmore is concerned people could legally walk along the newly exposed shoreline adjacent to what his now his back yard should the newly exposed land become public property.
If that happened, Chesmore would no longer be allowed to store his boat on the shore as he does now.
"I won't be able to put a boat across public land. And that's cutting off all access of mine to the river," he said.
During a recent public hearing regarding the city's permit application to the DNR to abandon and remove the dam, Sweeney said Janesville should conduct an economic impact study before the dam is removed.
An economic impact study was done around Lake Koshkonong during the recent litigation between those who wanted to hold back more water at the Indianford Dam to raise the lake's level and those who wanted the level to remain low. Sweeney was involved with that legal dispute.
The city must consider the secondary economic impacts of removing the dam, Sweeney said.
"We believe one of those (impacts) is going to be the diminution of my clients' properties because they're no longer going to be on the river they thought they were going to be on," he said. "They're going to be on a babbling brook …"
Chesmore agrees an economic impact study is necessary.
"Let's say the dam goes out. If I lose access to the river, is that going to affect the price of my property?" Chesmore said.
Of all the property owners along the Rock River, Chesmore stands to lose the least. He's the farthest from the Monterey Dam among the affected property owners.
Chesmore expects to see several inches of newly exposed land, but those who live closer to the dam could see several feet.
The DNR recently stopped accepting public comments regarding the city's request to abandon and remove the dam. It will consider all comments before making a decision on Janesville's request.
Davis said Wednesday he'd seen no comments raising issues the DNR wasn't already aware of, implying the DNR is likely to approve Janesville's request to remove the dam.
Should that happen, Sweeney said, his clients would request a court hearing to challenge the DNR's decision.