Amendment opens door to public trust challenges

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By Beth Kevit

Where state Rep. Jeff Stone sees a tree, environmental advocate Todd Ambs sees a forest.

Stone, R-Greendale, proposed an amendment to the state’s 2013-15 budget that could clear the way for Milwaukee developer Rick Barrett to build The Couture, a mixed-use building proposed for the city’s lakefront.

Stone’s proposal clarified that the Downtown Transit Center parcel proposed for The Couture does not fall under the state’s Public Trust Doctrine. Milwaukee County requested Stone help clarify that distinction after almost a year of waiting for an answer from the Wisconsin Department of Natural Resources.

Ambs, campaign director for the Healing Our Waters-Great Lakes Coalition, said the legislation could set a dangerous precedent, however, for developers statewide to try to circumvent public trust concerns. If the Legislature begins dictating what land does or does not fall under the doctrine, he said, that would make him nervous.

Wisconsin’s Public Trust Doctrine mandates waterways be open for public use. That protection extends to filled-in waterways, such as land along Milwaukee’s shoreline created when the harbor was built.

If the transit center parcel was on filled-in land, as Milwaukee-based environmental group Preserve Our Parks has argued, The Couture would not be an allowable use.

The precedent Stone’s amendment could affect “literally thousands of acres of filled-in lakebed that would then be open to having permanent structures,” Ambs said. That could increase water pollution, he said, and reduce wildlife habitats.

Stone said the amendment does not set a precedent, however.

“I don’t see another situation where you could recreate the legislation I did,” Stone said, “because I don’t think there’s another situation like this to be found.”

Dennis Grzezinski, senior counsel for Midwest Environmental Advocates, said he also expects repercussions from the amendment, but could not provide specifics.

“I guess it just remains to be seen,” he said, “whether this amounts to a wide-open door that lots of people want to rush through and get the Legislature to do their bidding.”

But, Grzezinski and Ambs agreed, that the legislation is not iron-clad.

“The Public Trust Doctrine is part of the Constitution,” Ambs said, “so the Legislature doesn’t get to pass laws that invalidate chunks of the Constitution.”

Preserve Our Parks agrees with Ambs and has threatened a lawsuit over the matter. Charlie Kamps, a POP board member, said his group is prepared to sue Milwaukee County if it approves a sale to Barrett or for another private development based on the Legislature’s action.

Brendan Conway, Milwaukee County Executive Chris Abele’s communications director, said the group’s threat would not preclude the county from moving forward on a sale, but said he was not sure when that might happen.

A developer’s agreement with Barrett first would go to the Milwaukee County Board of Supervisors’ Economic and Community Development Committee.

Supervisor Pat Jursik, chairwoman of the committee, refused to say whether she would approve a sale based on the amendment. She did say she had immediate concerns when the amendment was proposed last month.

“If they can do that for the shore of Lake Michigan,” she said in June, “they can do that for every river and they can do it for every lake.”

Reached Wednesday, Jursik said she believes the state has made the situation worse.

“You’ve just created an issue,” she said, “that potentially is going to be something that will cause, for anybody who lives along navigable waters, an environmental concern.”

The state chose an arbitrary line, she said, and all but ensured the battle over the transit center site would end in court.

Stone denounced the idea that his shoreline decision was arbitrary and said he relied on a certified survey map from the early 1900s and the results of about 100 years of development in the city of Milwaukee. If the former shoreline was farther west, as POP claims, he said, then some properties in the Third Ward could be filled-in lakebed.

Furthermore, Stone said, this was a unique situation, and Ambs’ prediction of similar legislation sprouting up is unfounded.

“We’ve used this line in maps and property lines,” Stone said, “and that’s not the case on every lake in every area across the state.”

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