By Roger Utnehmer
Yes! We are still talking about this! But the great news is we have each other and we are gathering momentum and better days are ahead.
If it were not for the facts below and for the wonderfulness of all of you and that our relationships build strength, harmony and wonderful community outcomes, this might be a drag. But it’s not. Pity the Mayor, pity John Asher and pity the opposition as their supporters are fewer, their excuses more inane and their potential outcomes dismal.
Facing some facts:
- You are great, we are great. We are doing great things together.
- We are growing a vibrant connected community that is expanding with new ideas, new people and new possibilities.
Thank you to everyone funding our efforts. Without your help we would not be here as a community. We owe a huge debt to all who have given and to several who have been our rock. From the bottom of our hearts, thank you.
So where are we exactly? – Let’s review the last 6 weeks.
June 14th. We have a settlement agreement!! Huge News!
Settlement conversations with the benefit of an expert facilitator (and the absence of the Mayor) achieved a unanimous Agreement on June 14th by all attendees empowered by their respective parties.
In the two days of discussions in Madison, WI facilitated by Jeremy Kautza, interim director of Madison College’s Interest-Based Problem Solving (IBPS), present for the plaintiffs were Nancy Aten, Carri Andersson, Kathleen Finnerty and Christie Weber as well as attorneys Mary Beth Peranteau and Sarah Geers. The City was represented by Council members Laurel Hauser and David Ward, City Attorney Randy Nesbitt and City Administrator Josh Van Lieshout, and accompanied by Attorney John Greene. The four members of the Friends and the four representatives from the City all gave the Agreement a “thumbs up” meaning they will actively support the agreement.
A delegation of the Friends group and the City’s Ad Hoc Settlement Committee, City Administrator and counsel met for two days of facilitated discussions (June 12th and June 14th) resulting in a stipulation as to the location of the ordinary high water mark (OHWM) of 92 East Maple Street. The negotiating parties anticipate that they will jointly recommend to DNR approval of an OHWM that is parallel to and 60 feet waterward of the original meander line according to the U.S. government land survey of 1835. This location was proposed by the City’s Ad Hoc Settlement Committee, Van Lieshout and Nesbitt. It was accepted by the Friends as a reasonably plausible approximation of the OHWM. This allows the Friends to uphold the public trust Constitutional norm and also move forward positively.
Additional elements of this agreement to resolve the pending litigation and appeal include the City’s commitment to an inclusive public process to redevelop the west waterfront site, to strive to maintain a scenic view and public use on 100 East Maple, and to withdraw the City Council’s resolution seeking a legislative designation of the OHWM on 92 East Maple.
The parties’ OHWM stipulation is founded in the evidence presented at trial and respects the circuit court’s previous findings as well as DNR’s 2014 OHWM concurrence determination for 100 East Maple. The parties and DNR recognize that uncertainties remain despite the historical evidence. In recognition of these uncertainties, the proposed OHWM grants the City, as riparian owner, the benefit of the doubt of the range of error inherent in the surveyed meander line, which itself was an approximation of the Lake Michigan shoreline near the time of statehood.
June 30th. The DNR is in.
On June 30th we learned that Attorneys for Friends and Attorneys for the City have DNR’s commitment to move forward with an OHWM determination that is consistent with the parties’ Agreement.
July 5th. The City Council meets and does… nothing.
The City has had the Agreement for more than two weeks, but the Mayor does not even put discussion of the settlement agreement on the agenda.
July 17th. The WRA meets with the Ad Hoc Settlement Committee and decides… nothing.
The WRA decides it needs more information about the offer based on the City’s proposed line which was approved and endorsed by the empowered Ad Hoc settlement committee.
July 18th. City Council meets to discuss, in closed session, ratifying the Agreement made and endorsed by the empowered Ad Hoc Committee, Van Lieshout and Nesbitt and does… nothing.
The Mayor and Council President Stewart Fett walked out, preventing a vote. (Apparently, they needed to attend a safety meeting at Bay Ship). As a result, the Council meeting adjourned without a vote.
July 20th. The City files the legal brief with the WI court of appeals, to appeal Judge Huber’s ruling made on February 10th… Continuing the delays to resolution.
July 26th. The WRA votes to punish everyone!
The WRA voted 5-2 to reject the Agreement formed with the OHWM line proposed by the City’s duly empowered Ad Hoc Settlement Committee along with Van Lieshout and Nesbitt. This “no” vote was done against the recommendations of Council members Ward and Hauser, against the recommendations of Randy Nesbitt, Administrator Van Lieshout and against the recommendations of other trusted advisors.
What??? Yes, the five members of the WRA who were not elected crushed the deal and send the entire community into a quagmire. As we see it, there are now five or six possible paths that this matter might take. We should remember that the Friends won in Court and that Judge Huber and the DNR, and Rep. Kitchens too, advised the City and the Friends to settle. The Friends took this advice to heart. The City’s delay will likely cost years. The machinations are mind numbing. The ridiculousness is appalling.
Since the DNR believed that all parties were on a path to Agreement, there is currently no date scheduled for the declaratory ruling hearing.
We believe the DNR will schedule a declaratory ruling hearing for some time in September. At that hearing, the Friends will advocate diligently and thoroughly for the 1873 shoreline which is based on sound facts and is near Maple Street about 150 feet landward of the line of Agreement reached on June 14th. In any event, this process is independently appealable and will likely take many months.
August 1st. Coincidentally…
The one year anniversary of a meeting between Bob Papke and Christie Weber at which Bob proposed an Agreeable location for the hotel along Madison, next to the dry cleaners and across from the new apartment development. This proposal was soon accepted by the Friends, as it would be located landward of the 1835 surveyed original meander line. It was rejected by the Mayor when it was delivered to the City by Rep. Joel Kitchens. Where will we be on August 1st, 2018??
August 1st – noon . The City Council will meet in closed session to consider ratification of the Settlement Agreement.
— Please let them know how you feel, speak your mind – Ask them to unanimously vote to affirm the Settlement Agreement and take control of the WRA.
- Mayor, Thad Birmingham – (920)493-0585, email@example.com
- City Administrator, Josh Van Lieshout,– (920)746-2900, ext. 4, firstname.lastname@example.org
- Alderperson, District 1, Kelly Catarozoli – (920)495-4995, email@example.com
- Alderperson, District 2, Ron Vandertie – (920)743-3886; (920)493-0017, firstname.lastname@example.org
- Alderperson, District 3, David Ward – (920)743-8832, email@example.com
- Alderperson, District 4, Rick Wiesner – (920)559-2836, firstname.lastname@example.org
- Alderperson, District 5, Barb Allmann 920 743 5672, email@example.com
- Alderperson, District 6, Stewart Fett – (920)493-3244, firstname.lastname@example.org
- Alderperson, District 7, Laurel Hauser – 920 493 0572, email@example.com
What’s ahead? Lots of possible paths…
- The possibility of harmful legislation still exists, but it is much less now that the City has rejected the Agreement, based on the line they themselves provided. Any legislator taking up this issue (especially prior to Sturgeon Bay resolving) will be opposed strenuously by conservation organizations throughout the state. It does not mean it won’t happen. But it would get very ugly.
- The appeal by the City (of the Friends’ February 10th victory in circuit court) is moving forward, although it will be an uphill legal battle for the City. The City filed their brief (containing nothing new) and we will file ours. The City believes that since the money is coming from their insurance provider it doesn’t matter. Unfortunately, this appeal will cost everyone time and money. The Friends will do our best to slow this process to allow a negotiated settlement and minimize all costs related to this effort. Ultimately this path could arrive at the Supreme Court. This would take years and a lot of money (City staff would continue to waste their time on this rather than spending it on a number of other important local concerns).
- Declaratory ruling hearing by the WDNR is currently not scheduled. The WDNR is willing to sign off on the results of our settlement agreement. Our attorneys are prepared to mount a vigorous case in the form of introduction of the circuit court’s finding of facts and presentation by our expert witnesses. The DNR could declare the location of the OHWM to be in several places that are better for the community and the Friends. Although not likely, it is possible that the DNR could select a location that is worse (ignoring facts). This is a roll of the dice. This process is independently appealable.
After any independent appeal runs its course, the resulting OHWM determination would be brought back to Judge Huber for his approval (you remember Judge Huber, he said the all or most of parcel 92 is below the OHWM and most certainly the OHWM is not at the bulkhead). He would likely give deference to the DNR’s OHWM, however, it is his call. If the line significantly contradicted his findings of fact, he could choose to not lift the injunction against the sale.
- Some roads lead to conflict of interest.
We believe that the Mayor is violation of 19.59 (1) Codes of ethics for local government officials, employees and candidates based on his votes, his conduct, his ownership of a condominium at Bridgeport, his position as board president at Bridgeport. If anyone would like to take on this project, please contact me and I can provide the foundational documents and preliminary findings.
- The City Council could discover its power and unanimously vote to affirm the Agreement on August 1st. It could also vote to either override or disband the dysfunctional and mostly non-elected WRA. This could provide the needed affirmation of the Settlement Agreement. The DNR could then accept the Agreement, as they have indicated they would, and then all parties can go to Judge Huber for his ruling.
We could be done in 30 days. We could be having cake and coffee on Labor Day. Think about it, cake and coffee – good cake too!
Thank you for your great work. I know that together, we will not be denied our public waterfront. Thank you for being a part of our vibrant and joyful community!
Are we still talking about this? Yes!