Ruling by county judge boosts prospects for The Couture

Milwaukee County Circuit Court Judge Christopher Foley on Friday provided a major victory for supporters of private development on the site of the Milwaukee County Transit Center.

Foley 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 site, located southwest of Lincoln Memorial Drive and Michigan Street near the lakefront in downtown Milwaukee.

County officials want to sell the property to Barrett Lo Visionary Development, which plans to build a 44-story luxury apartment tower on the site.

Foley’s ruling today is a major victory for The Couture project and a major defeat for Preserve Our Parks’ efforts to stop it. However, Preserve Our Parks could appeal the ruling to a higher court and ultimately the final decision may be up to the state Supreme Court.

“I’m disappointed (by Foley’s ruling),” Preserve Our Parks president John Lunz said. He said the group has not decided if it will appeal the case to a higher court.

“This is what we expected to occur,” said Alan Marcuvitz of von Briesen & Roper, who was hired by the county to assist with the legal battle on the site’s development rights. “We anticipate this will be reviewed by an appellate court, hopefully soon.”

The county has been unable to get title insurance to sell the site to Barrett because Preserve Our Parks has threatened legal action to block the development. Preserve Our Parks says most of the site was originally park of Lake Michigan and therefore private development of the site is forbidden by the public trust doctrine.

In 2013 the state Legislature passed, and Gov. Scott Walker signed, legislation establishing that the historic shoreline is east of the Downtown Transit Center site. The state Legislature used the 1913 shoreline as the basis for the law to establish a boundary between the lakefront and where private development would be allowed.

Preserve Our Parks said the lakefront boundary should be based on the 1848 shoreline of Milwaukee.

Foley said 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 1844 line “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 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 Legislature’s action provided a negative impact.

“The actual land in dispute has not been lake for over 100 years, so there is no impact on navigation,” Foley said. “That is self-evident.”

Plans for the $122 million Couture development include retail space, public parking, a rooftop park, a public transportation concourse, a streetcar stop, a pedestrian bridge over Lincoln Memorial Drive to the lakefront, connections to other adjacent properties, a streetcar stop and a bike sharing station. The project has 81,560 square feet of public space and if the public parking is included it has 178,000 square feet of public space.

The property is currently owned by Milwaukee County and is used for bus storage and bus transfers. There is public park space on top of the building.

Foley said Preserve Our Parks would be unable to argue that The Couture development harmed public access to the lakefront.

“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.”

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