Budget amendment could clear way for Couture

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By Beth Kevit

A proposed amendment to the state budget could settle the lengthy land-use dispute over The Couture and allow construction of the high-rise development in downtown Milwaukee.

But Dennis Grzezinski, senior counsel for Midwest Environmental Advocates, said he does not think the Legislature has the authority to decide where Lake Michigan’s shore once was.

The dispute centers on whether a parcel of land on Milwaukee’s lakefront was once underwater and subject to land use restrictions set by the Public Trust Doctrine, which is laid out in the state constitution. The state’s Department of Natural Resources has been reviewing evidence but has not been able to make a determination.

The proposed amendment to the state budget, which the Joint Committee on Finance approved Wednesday morning, seems to be an effort to pluck a determination from thin air, Grzezinski said.

“They’re ignoring the fact that the constitution stands on a higher plane and trumps contrary actions by the Legislature,” he said. “It’s, gosh, exceedingly clever, which is why they had to do it at 5:30 in the morning, and that’s when a lot of shameful things take place.”

Milwaukee developer Rick Barrett and Milwaukee County Executive Chris Abele unveiled The Couture in July, but the proposal has yet to make it past the Milwaukee County Board’s Economic and Community Development Committee.

Preserve Our Parks, a nonprofit group, has raised concerns that the Downtown Transit Center, which Barrett wants to demolish to make way for The Couture, was built on a parcel that includes filled-in lakebed. If that is the case, the land falls under the state’s Public Trust Doctrine and cannot support private development. The Couture would house a hotel, apartments and retail space, among other uses.

The proposed amendment to the state budget would establish the historic shoreline of Lake Michigan east of the transit center. That would mean the site is not subject to the doctrine.

State Sen. Alberta Darling, R-River Hills, and state Rep. John Nygren, R-Marinette, introduced the proposal. Neither responded to requests for comment by deadline Wednesday afternoon.

The proposed line comes from a 1913 land deal between Milwaukee and the Chicago and Northwestern Railway Co. If the provision remains in the final budget, Milwaukee County would not have to seek a judge’s opinion on the matter. The County Board authorized an attorney to seek that opinion in February, but no legal action has been started.

Milwaukee County Supervisor Steve Taylor, a member of the Economic and Community Development Committee, said the county’s economic development director, Teig Whaley-Smith, told him about the proposed amendment before Wednesday’s vote. Taylor said he did not know who from the county might have asked legislators to introduce the amendment.

Whaley-Smith did not immediately respond to a request for comment.

Taylor, who supports The Couture, said the DNR was taking too long to make a decision, and the county needed the state to step in.

Supervisor Jim Schmitt, another member of the Economic and Community Development Committee, said he is glad the state “entered the fray.” He said he does not know why legislators who introduced the amendment chose the 1913 line over others, but that determination matches the opinion of the county’s attorney, J. Bushnell Nielsen of Milwaukee-based Reinhart Boerner Van Deuren SC.

“I was confident before,” Schmitt said, “and their coming into it and corroborating things makes me more confident.”

However, Supervisor Pat Jursik, chairwoman of the Economic and Community Development Committee, said she is outraged at the state committee’s action and suspects Abele has undue influence in Madison since the passage of a reform law targeting Milwaukee County.

Abele did not immediately respond to requests for comment Wednesday, but a written statement attributed to him thanks state legislators for their action.

Jursik said the proposed amendment, if signed into law, probably would draw legal challenges.

“They may have delayed the process on getting this resolved,” she said, “by years.”

Bill Lynch, a board member of Preserve Our Parks, said there had been no warning the Legislature would weigh in on the issue. He said he was dismayed there had not been a public hearing on the proposed budget amendment.

“This is sort of an attempt to alter reality,” he said, “to obtain a result that violates the constitutional protection of the public trust.”

John Lunz, executive director of Preserve Our Parks, said the group has not decided whether it would launch a legal challenge.

But, Grzezinski said, it does not matter who would challenge the potential action. Anyone, he said, would succeed.

“If a court today is anything like the courts for the last 100, 150 years,” Grzezinski said, “this legislative enactment is not worth the paper it’s written on.”

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