Proposed legislation that would define the location of the Milwaukee shoreline, and therefore determine where private development can be built downtown near the lakefront, is based largely on a 1927 state Supreme Court ruling, according to state Rep. Joe Sanfelippo, R-West Allis, the lead sponsor of the Assembly version of the bill.
The location of the shoreline is critical for The Couture, a proposed 44-story apartment, hotel and retail tower that developer Rick Barrett wants to build at the site of the Downtown Transit Center southwest of Lincoln Memorial Drive and Michigan Street in downtown Milwaukee. Milwaukee County officials want to sell the transit center property, currently used as a bus storage and turnaround facility, to Barrett for the development. But parks advocacy group Preserve Our Parks has threatened to sue to block the project arguing that the site was once in the Lake Michigan lakebed and therefore private development there is not permitted under the state’s public trust doctrine.
Preserve Our Parks’ threat of a lawsuit has prevented Barrett and the county from obtaining free and clear title insurance for the property.
Legislation introduced by Sanfelippo in the state Assembly and by state Sen. Leah Vukmir, R-Wauwatosa, in the state Senate, seeks to legally define the Milwaukee shoreline where it was established in 1913, which is just east of the Downtown Transit Center site, unlike older maps that Preserve Our Parks says shows the original shoreline running through the middle of the transit center property.
A similar provision was inserted last year into the state budget. Preserve Our Parks members have argued that that provision is not legal.
But in pushing for standalone legislation on the matter, Sanfelippo says that a 1927 state Supreme Court ruling indicates that the Legislative has the authority to define the location of the shoreline and to protect the public trust.
“The shoreline as established in 1913 was done so legally within the confines of the state Constitution,” Sanfelippo said in an Assembly public hearing on the bill last week. “The mere fact that someone may not agree with the law does not make the law any less legal. Opponents of (The Couture) are trying to cloud the issue by claiming their dispute over the project revolves around uncertainty over the public trust doctrine. But what they are really disputing is the Legislature’s authority to act within the guidelines of the public trust, an issue that was settled in a 1927 state Supreme Court decision.”
Key language in the 1927 state Supreme Court case cited by Sanfelippo includes: “the trust reposed in the state is not a passive trust, it is governmental, active and administrative. Representing the state in its legislative capacity, the Legislature is fully vested with the power and control and regulation…the trust, being both active and administrative, requires the lawmaking body to act in all cases where action is necessary.”
The shoreline legislation is backed by supporters of The Couture project including Barrett, construction trade unions and Milwaukee County Executive Chris Abele. But some County Board members, including Supervisor Pat Jursik, have argued that the county should instead take legal action to establish development rights for the property. Last week the County Board delayed taking action on a request for immediate legal action on the matter.
Legal counsel hired by the county has advised Abele’s administration that seeking state legislation is the best way to address the shoreline issue.
The state Senate will hold a public hearing on the bill on Thursday.
