Budget provision could clear Couture

The state budget approved this morning by the Joint Finance Committee, the powerful budget-writing committee of the state Legislature, includes a provision that establishes the Lake Michigan shoreline in Milwaukee. The measure is an attempt to end a dispute about development rights for the Downtown Transit Center site, located southwest of Lincoln Memorial Drive and Michigan Street.

Developer Rick Barrett plans to build a 44-story mixed-used tower on the site with upscale apartments, a hotel, restaurants, retail space, and possibly a new home for the Betty Brinn Children’s Museum and a new performance venue for the Milwaukee Symphony Orchestra.

But the Couture project is opposed by parks advocacy group Preserve Our Parks which says that much of the site is filled lakebed and therefore subject to the state’s public trust doctrine. Therefore private development should not be permitted on the site, the group says. Preserve Our Parks has threatened to take legal action to block development of the site.

The action by the Joint Finance Committee seeks to clear up the issue to allow development of The Couture to move forward. The provision sets the Lake Michigan shoreline based on an agreement between the city of Milwaukee and the Chicago and Northwestern Railway Company in 1913. That means the site for The Couture would not be subject to the public trust doctrine.

“We certainly welcome state action that removes any remaining uncertainty on the issue,” Barrett said. “This legislation simply re-affirms the definition of the lakefront that the city and state have been using for more than a century. We remain confident that the public trust doctrine does not apply to the Downtown Transit Center site, based on extensive research into the issue. That conclusion was corroborated by the DNR’s review in 2012. And we’re confident that any additional legal or regulatory review would come to the same conclusion.”

The state budget still must be approved by both houses of the Legislature and signed by Gov. Scott Walker. The Downtown Transit Center, used as a bus garage and transfer facility, is owned by Milwaukee County, which plans to sell the property to Barrett.

“I appreciate the Joint Finance Committee’s willingness to provide clarity on this important issue,” said Milwaukee County Executive Chris Abele. “The boundaries established in 1913 have long been recognized by the DNR, the state legislature and others as the lake bed boundaries, and as a result, have been used for a century of real estate development in Milwaukee. The clarity provided by this action will allow the city and county the ability to move forward on economic development that will put people to work and create millions of dollars of tax base.”

However, despite the action taken by the Legislature, Preserve Our Parks still plans to fight to block The Couture.

“This (action by the Joint Finance Committee) doesn’t surprise us,” said John Lunz, president of Preserve Our Parks. “As far as what we’re going to do, we’ll just have to wait and see. We don’t know what we’re going to do. We will do something, you can be sure of that. This is not the end.”

“I full expect (Preserve Our Parks) to challenge (the shoreline set by the state budget),” Barrett said.

The public trust doctrine is a part of the state constitution and a court ruling could be required to determine to what extent the Legislature can declare what the shoreline is, said William O’Connor, the attorney for Preserve Our Parks. “I think there is lots of evidence that the shoreline (at the time of Wisconsin’s founding as a state) was located well within the boundry of this site,” he said. If that is the case the eastern half of the Downtown Transit Center site would be subject to the public trust doctrine.

Twice, most recently last fall, the state Department of Natural Resources has determined that the Downtown Transit Center site is not subject to the public trust doctrine. But Preserve Our Parks has objected to the DNR’s position.

Recently at a May 1 meeting between DNR deputy secretary Matt Moroney and legal counsel for Preserve Our Parks, Barrett and Milwaukee County, the parks group presented an 1884 Milwaukee & Northern Railroad map of the site.

The DNR had “become aware” of that map in late February or early March, according to a letter from Moroney. However that map, “does not change the department’s position regarding the historic shore of Lake Michigan in this vicinity,” Moroney said. “Based upon all of the information that has been provided thus far 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.”

Read more coverage of the state budget at Wispolitics.com, a media parter of BizTimes Milwaukee.

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