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DNR denies making determination on Couture site

By: Beth Kevit//June 4, 2013//

DNR denies making determination on Couture site

By: Beth Kevit//June 4, 2013//

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Developer Rick Barrett is negotiating with Milwaukee County to buy property on the Milwaukee lakefront to build The Couture, an estimated $150 million, 44-story high-rise building on the footprint of the Downtown Transit Center. Preserve Our Parks officials say the transit center was built on filled-in lakebed. If that’s the case, the group argued, The Couture could not be built on the property because it would fall under the Public Trust Doctrine, which limits the land to public use. (Rendering courtesy of Barrett Visionary and Rinka Chung Architecture)

By Beth Kevit

Developer Rick Barrett has rolled with the punches thrown by Preserve Our Parks during its challenge of his proposal to build The Couture on Milwaukee’s lakefront.

Considering the ongoing uncertainty surrounding the status of the more than $150 million project’s proposed downtown site, it might be best if the 44-story, mixed-use tower is able to roll too, said Dennis Grzezinski, senior counsel for Midwest Environmental Advocates.

“Anybody who is contemplating investing large sums of money that, you know, would approach half of the footprint of that site or more, ought to build it on wheels,” Grzezinski said. “They may very well find they’re going to have to move it.”

The nonprofit Preserve Our Parks has alleged Milwaukee County’s Downtown Transit Center parcel, which Barrett wants to replace with The Couture, is up to two-thirds filled-in lakebed. Under the Public Trust Doctrine, any land that once was a waterway in Wisconsin must be held for public use.

Milwaukee’s shoreline was moved east to accommodate a harbor, and the shore’s exact former contours are disputed.

If a portion of the transit center parcel falls under the doctrine, The Couture, which would include apartments, a hotel and retail, would not be a legal use of that land.

Supervisor: Answers still needed for Couture to move forward

Supervisor Pat Jursik said the new state reform law targeting Milwaukee County, which prescribes the limitations of the board’s role in real estate transactions, does not outweigh a resolution dictating conditions for the sale of the Downtown Transit Center site.

Milwaukee developer Rick Barrett has proposed a 44-story mixed-use building as a replacement for the county-owned transit center. The board passed the resolution in July to allow the county’s economic development chief to start negotiating with Barrett.

One condition included in the resolution requires clarity on whether any portion of the transit center parcel is filled-in lakebed. If that is the case, the land falls under the Public Trust Doctrine and must be reserved for public use. That would mean Barrett’s proposed high-rise, The Couture, which would include apartments and a hotel, would not be a legal use of the land.

Preserve Our Parks, a nonprofit community group, has maintained that up to two-thirds of the parcel once was underwater but was filled in to create the harbor.

Assembly Bill 85, which Gov. Scott Walker signed into law Friday, limits the County Board’s involvement in real estate transactions to a yes-or-no vote on accepting contracts negotiated by the county executive.

Jursik said she believes that restriction is based on the false premise that supervisors insert themselves into negotiations.

The board sets policy, she said, and in this case, has set a policy that requires clarity on the Public Trust Doctrine question before the supervisors will consider a sale. Those questions have not been satisfied at this time, she said.

– Beth Kevit

The Wisconsin Department of Natural Resources, which determines whether properties are subject to the doctrine, has not completely answered the question, according to those on both sides of the dispute.

According to a Sept. 28 DNR press release, the parcel does not fall under the doctrine.

“The Wisconsin Department of Natural Resources has determined the parcel of land on which the Milwaukee Transit Center is located does not fall under the Public Trust Doctrine,” according to the release.

But Kris Hess, a DNR attorney, said Tuesday the department did not and still does not have enough information to determine whether the transit center site falls under the doctrine.

“We can’t tell where the shoreline is,” she said. “It cannot definitively be determined.”

According to a memo accompanying the press release, which Hess wrote, maps provided by Preserve Our Parks could not “definitively establish” the former shoreline, and “it follows that the Milwaukee Transit Center site has not been demonstrated to be submerged lands.”

That has not changed since September, she said.

Barrett, however, said he viewed the May letter as a positive development.

“This is the third time,” he said, “in my mind, they’ve made the statement their opinion hasn’t changed.”

Hess’s argument that the DNR did not make a determination in September has not been presented to him, Barrett said. He firmly believes the site does not fall under the doctrine, he said, and believes the DNR’s past statements about the site contradict Hess’s argument.

“I’ve never heard anyone, ever, that has legal, legal education,” he said, “tell me that this property is subject to Public Trust Doctrine.”

But County Supervisor Pat Jursik, chairwoman of the board’s Economic and Community Development Committee, said the DNR’s tone has changed. She said she is drawing that conclusion from a May 16 DNR letter sent to William O’Connor, an attorney with Madison-based Wheeler, Van Sickle and Anderson SC who represents Preserve Our Parks. The letter, attributed to DNR Deputy Secretary Matt Moroney, referred to a recently discovered 1884 map that Preserve Our Parks claims bolsters its argument.

“Based upon all of the information that has been provided thus far,” according to the letter, “it is still the opinion of the Department that the exact location of the historic shore of Lake Michigan cannot definitively be determined as it relates to the Milwaukee (County) Transit Center site.”

Questions surrounding the shoreline’s exact location are not new. But, Jursik said, the DNR made a definitive statement in September that the land does not fall under the doctrine despite the shoreline uncertainty.

(Click map to enlarge)

In the May letter, she said, the phrase “as it relates to the Milwaukee (County) Transit Center site” is troubling. If the DNR cannot say where that line is in relation to the site, she said, how can it be sure the shore did not once run through the parcel? Furthermore, she said, the letter mentions the DNR’s opinion about the shoreline’s location but does not reiterate the department’s opinion that the parcel does not fall under the doctrine.

“They’re now saying it’s undefined,” she said.

Hess said the shoreline has always been undefined and denied the accusation that the DNR is changing its tone.

“I don’t think we’re deliberately trying to back away from what we’ve said previously,” she said.

She said she did not know why the press release would say the department had determined the land did not fall under the doctrine and referred further questions to Bill Cosh, the DNR’s spokesman. Cosh did not respond immediately to a request for comment.

O’Connor said he noticed the same shift in tone that concerns Jursik.

“I think a reasonable person reading the press release and the memo,” he said, “could have concluded, as many did, that the DNR did make a determination, and the determination is: The site is not filled-in lakebed.”

Grzezinski, who said he has talked with Preserve Our Park members about their claim and looked over the maps the group offers as evidence, said there is no doubt at least half of the parcel once was underwater. He said he thinks the DNR is coming to the same realization.

“I think they certainly have backed off of it,” he said, “but are trying to do that in a way that doesn’t make clear to everyone that they made a mistake, so they’re kind of inching away.”

That inching away, Jursik said, means the board’s Economic and Community Development Committee will hold a closed-session discussion Monday with the attorney the county hired to settle the public trust concern.

Jursik said she doubts any company would offer title insurance when there is a public trust concern.

Grzezinski said if the uncertainty remains over the doctrine’s effect on the property, there is not much chance The Couture could be built.

“I’m not sure people are in the business,” he said, “of building buildings on wheels.”

— Follow Beth on Twitter


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