Zerwekh trial opens with accusations

Posted: Feb. 22, 2012

Waukesha - Delafield resident Gayle Gaborsky testified in Waukesha County Circuit Court on Tuesday that she purchased a $710,000 home adjacent to a millpond from a city alderman because the alderman assured her that the city would "repair or replace" the dam and preserve the millpond.

Although Gaborsky did not mention his name, former Alderman Steve Headley sold his home on the pond when he moved out of state. Headley was among several city officials who urged the Common Council to take steps to preserve the dam and mill pond.

A Common Council resolution adopted in 2005 expressing interest in the dam and millpond was included with a sales contract when Gaborsky purchased the home in July 2006, according to her testimony.

However, in 2008, the Wisconsin Department of Natural Resources (DNR) ordered the millpond drained because of safety considerations and later issued Zerwekh a permit to remove the dam.

At about the same time, the city, with a new mayor and city administrator, changed its policy, declaring it was no longer interested in preserving the dam and would remain neutral in the controversy between Zerwekh and her neighbors.

Gaborsky testified that the value of her home dropped about $240,000, according to independent appraisers and a former city assessor, because she no longer had access to the millpond.

She also testified that a DNR environmental assessment reported that after the pond was drained, unacceptably high levels of arsenic remain in some portions of the sediment near her home.

But Gaborsky indicated in her sometimes-emotional testimony that her greatest loss was the aesthetic beauty and serenity of the millpond.

"There is a quiet and serenity on a millpond that is not on a lake. You can watch the sun rising and setting on the millpond. You can walk down the pier on a quiet morning, enjoying a cup of coffee, or you can go kayaking," she explained.

Gaborsky is among five homeowners who live along the former pond who are seeking more than $1 million in damages from Zerwekh in a civil jury trial before Circuit Court Judge Lee S. Dreyfus Jr. The trial started Tuesday.

Attorney Bradley Dagan said his clients are seeking compensation for their lost property values and the estimated costs of mitigating the damage caused when the millpond was drained.

He asserted during opening arguments in the trial that Zerwekh is responsible for the lost property values and the nuisance of the estimated 52,000 cubic yards of sediment that was left after the dam gates were lifted and pond drained.

He accused Zerwekh of allowing the dam to deteriorate and failing to meet state dam safety standards.

"For 20 years, some of her neighbors have tried to help her. She has refused to accept their offers to help her take care of the dam. She has chosen to remove the dam, and there are legal responsibilities for that decision," he argued.

Zerwekh's attorney, Steve Schumki, rebutted, "Margaret Zerwekh did not do anything to create a nuisance." He noted that the DNR ordered the dam gates opened because they were concerned that flooding from heavy rains threatened the dam.

"The day of that rain event, Margaret's dam started to fail," he said.

He argued that if the dam had failed, Zerwekh would have been responsible for any loss of life or property. He said she has opted to have the dam removed because of the estimated cost to repair to it and her age.

Zerwekh, who recently celebrated her 92nd birthday, sat in a wheelchair next to Schumki at the lawyer's table in the courtroom wearing an audio headset because her hearing is failing.