Nearly three years after plans for The Couture development were first announced, the project recently won a major legal victory that brings it closer to finally breaking ground.
Opponents of the project could try to continue to stall it with a lengthy legal appeals process. But supporters are hoping any appeal is handled as quickly as possible, perhaps by having it advanced straight to the state Supreme Court.
“I’m confident that a resolution is coming sooner rather than later,” said Rick Barrett, the developer for The Couture.
Milwaukee County Circuit Court Judge Christopher Foley recently granted Milwaukee County and the City of Milwaukee’s request for summary judgement to dismiss parks advocacy group Preserve Our Parks’ legal argument that private development is forbidden on the proposed site for The Couture.
Milwaukee County officials want to sell the Downtown Transit Center site, located southwest of Lincoln Memorial Drive and Michigan Street near the lakefront, to Barrett Lo Visionary Development. The property is prime real estate, but underutilized as a bus storage and bus transfer facility, with a little-used park on top of the structure. Owned by Milwaukee County, it generates no property tax revenue.
Milwaukee County officials want to put the property to a higher and better use. They issued an RFP and selected Barrett Lo Visionary Development’s proposal to build a 44-story, $122 million luxury apartment tower called The Couture. The project would have 302 apartments, about 50,000 square feet of retail space, public parking, and numerous public amenities.
Ever since The Couture was proposed, Preserve Our Parks has objected to the project, saying that most of the Downtown Transit Center site is on filled lakebed. The group says most of the site was part of Lake Michigan when Wisconsin became a state, and therefore private development is forbidden there by the state’s public trust doctrine.
Preserve Our Parks threatened to file a lawsuit to block The Couture project. That threat discouraged title companies from providing title insurance for the property and has effectively blocked the project for three years.
In an attempt to settle the matter once and for all, Milwaukee County and the City of Milwaukee earlier this year sued Preserve Our Parks. Foley, in his recent ruling, sided with the county and city.
“I appreciate Judge Foley’s clear decision allowing the redevelopment of the underused Downtown Transit Center to move forward,” said Milwaukee County Executive Chris Abele. “The planned Couture development will create a vibrant public space that improves access to the lakefront, creates thousands of jobs and adds another signature building to Milwaukee.”
It was just the latest of several victories the county has won in its attempt to establish the development rights of the Downtown Transit Center site:
- In 2011, Department of Natural Resources officials told Milwaukee County officials that the Downtown Transit Center site is not subject to the public trust doctrine.
- Prompted by complaints from Preserve Our Parks, the DNR reviewed the matter again and in September of 2012, less than three months after plans for The Couture were announced, the DNR again said the Downtown Transit Center site is not subject to the public trust doctrine.
- In an attempt to further clarify the matter, the state Legislature in 2013 inserted an item into the state budget that set the Lake Michigan shoreline based on an agreement between the city of Milwaukee and the Chicago and Northwestern Railway Company in 1913. That meant the Downtown Transit Center site would not be subject to the public trust doctrine.
- As a reinforcement, in 2014 the Legislature passed a standalone bill that yet again established the 1913 line as the official shoreline boundary that determined where private development near the lakefront is allowed and where it is not.
Then came Foley’s recent decision. Foley said he agreed with Preserve Our Parks that the 1913 boundary is not the accurate location for the city’s historic shoreline. But he said it would be difficult to establish the exact location of the 1848 shoreline “with any level of absolute certainty, maybe even reasonable certainty.”
He also said that there is legal precedent that allows the state Legislature to grant public trust lands to a private entity as long as there is a public benefit and that doing so does not impact navigation or public access to the water.
Foley said he did not see any way Preserve Our Parks could argue that the state legislation and the proposed sale of the Downtown Transit Center site for The Couture project would provide a negative impact to navigation.
“The actual land in dispute (for The Couture) has not been lake for over 100 years, so there is no impact on navigation,” Foley said. “That is self-evident.”
Foley also said Preserve Our Parks would be unable to argue that The Couture development harmed public access to the lakefront. The project has 81,560 square feet of public space including a rooftop park and a public transportation hub, a pedestrian bridge over Lincoln Memorial Drive to the lakefront and connections to other adjacent properties.
“If anything, it appears from this record that it will benefit those interests,” Foley said. “There is just no way Preserve Our Parks can establish anything that is a negative impact. In all likelihood, it could only show it is a positive impact.”
After each action taken by state and local officials in an attempt to allow development of the Downtown Transit Center site, Preserve Our Parks has continued to object and threaten legal action based on the public trust doctrine and on maps of the city’s original shoreline.
Now, after Foley provided the latest defeat to Preserve Our Parks, the group must decide if it will file an appeal of the judge’s decision.
“If Preserve Our Parks wants to continue to appeal this ruling, I hope they will do it in an expedited manner,” Abele said.
That appears unlikely. Part of Preserve Our Parks’ strategy appears to be to try to stall The Couture project so long that the project dies. The group threated to take legal action for years to block the project but never did, and the case only went to court when the group was sued by the county and city.
Preserve Our Parks president John Lunz said the group has not decided if it will file an appeal to the Foley decision. The group’s next meeting is July 16, he said.
“I’m sure no decision will be made until then,” Lunz said.
In a civil case, an appeal to a circuit court case must be filed with the Wisconsin Court of Appeals within 45 days from the entry of final judgment. Foley’s decision was rendered on June 26. The appeals court process could take several months and the decision by that court could then be appealed to the state Supreme Court.
But another possibility is that the appeal is advanced right to the state Supreme Court for an expedited appeals process. In late 2014, the county filed a lawsuit with the state Supreme Court in an attempt to expedite the legal battle over the development rights of the Downtown Transit Center site. But early this year, the state Supreme Court declined to take up the dispute and sent the matter to the lower court.
Justice Patience Roggensack dissented on the order to send the case to the lower court. Since then, she has become the chief justice of the state Supreme Court. That happened after state voters in April approved a referendum to allow the Supreme Court judges to choose their leader instead of appointing the chief justice based on seniority. After the referendum was approved, the conservative majority on the court picked Roggensack as chief justice to replace Shirley Abrahamson.
No matter how the legal battle plays out, Barrett has vowed to stay the course during the long battle to gain control of the Downtown Transit Center site. It is not the first time he has had to be persistent to get a high rise built in downtown Milwaukee. It took at least six years for him to develop The Moderne, a 30-story apartment and condo tower at 1141 N. Old World Third St. that was completed in 2012, despite financing challenges posed during the Great Recession. The project’s 203 apartments are fully leased, Barrett said.
“I need to build more apartments to rent,” he said.
