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Court: Soil sampling at railroad project site in North Fond du Lac was OK

Apr. 25, 2013
 
A CN Railroad train nears the crossing at Kinker Road in the town of Friendship in this photo taken Feb. 18.
A CN Railroad train nears the crossing at Kinker Road in the town of Friendship in this photo taken Feb. 18. / The Reporter Media file photo

The Department of Transportation was within its rights when it took soil samples in 2010 from Wisconsin Central Railroad property in North Fond du Lac, a court has ruled.

The Wisconsin Court of Appeals sided with Fond du Lac County Circuit Court Judge Robert Wirtz, who had denied Wisconsin Central Railroad’s (now Canadian National) motion for an injunction on the taking of soil samples from railroad property. The court said there was no illegal search and seizure of property.

The soil samples were needed as part of a plan for a proposed bridge that would span railroad tracks at Lakeshore Drive in North Fond du Lac.

“It was something they (the railroad) had wanted to do all along,” said North Fond du Lac Village Administrator Chuck Hornung regarding the bridge project.

The Appeals Court ruling released Wednesday said the same thing:

“WCL (Wisconsin Central Limited) consented to this limited sampling, a necessary component of the design phase of the overpass project, expressly described in the study that led WCL and the village to agree upon Alternative B, an agreement that was expressly approved by the Office of the Commissioner of Railroads in its resolution of the public safety and traffic concerns at the crossing.”

The Appeals Court said that the voluntary agreement between the railroad and village to move forward with the overpass project led the DOT to take soil samples.

“WCL cannot now complain that this limited sampling, necessary to complete the design phase of the project, violates its property or constitutional rights,” the decision said.

Patrick Waldron, spokesman for CN Railroad, said company officials are reviewing the court decision and deciding what the next move may be.

“We do have an agreement to fund a portion of the project,” Waldron said about the $800,000 promised if federal funding was secured.

Hornung said the village and its consultant are attempting to find federal funding for the project — originally estimated at $8-9 million. Hornung said the project is not possible without significant financial assistance. The bridge would be constructed over existing tracks at Lakeshore Drive on the south end of the village — not the Lakeshore Drive synonymous with Highway 45.

Crossing frustration

John Hounsell, owner of Hounsell’s Greenhouse and Garden Center at N7708 Lakeshore Drive, also owns and operates a farm north of the greenhouse, off Highway 175.

Each day, he goes back and forth between operations. Daily, he waits for trains that block the crossings, he said.

Sometimes he is able to “outrun” the trains if he can get to another crossing before it’s blocked. Most of the time he travels a distance out of his way to get to his destination.

“I realize they’ve got a business to run,” he said about the railroad, “but they’ve got to act reasonably.”

On Sunday, he went around a blocked crossing on his way to a business in Berlin. When he returned from Berlin, the same vehicles were still sitting at the tracks.

Officials and residents say the blocked crossings are a safety concern. Residents on Highway 45/Lakeshore Drive are on the opposite side of tracks from first responders and firefighters.

Hounsell has previously put up a sign that tells motorists: Drive carefully! The ambulance is on the other side of the tracks.

Hornung said “from Day 1” officials have been concerned about public safety and response to people on the other sides of the tracks.

“We feel (a bridge) would definitely be an asset to the village if we can make it happen,” he said.

Laurie Ritger may be reached at lritger@fdlreporter.com or 907-7925.

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