By Roger Utnehmer
After approximately 90 minutes of testimony, Sturgeon Bay Community Development Director Marty Olejniczak cited the goals of west side waterfront develpoment, emphasizing elimination of blight and economic benefits to the city and adjoining property owners.
He said positive development is on hold because of the lawsuit filed by Friends of the Sturgeon Bay Public Waterfront, stating the litigation is doing damage to the city.
According to Olejniczak, the hotel project was approved by the city plan commission, Waterfront Redevelopment Authority and city council. Yet, he said, the Friends lawsuit jeopardized efforts to revitalize the property and is negatively impacting the citizens of Sturgeon Bay. He said any rights under the public trust doctrine have long lapsed.
He asked the Department of Natural Resources to determine that all of parcel 92 be considered to be located above the ordinary high water mark and be available for development.
City Attorney Randy Nesbitt presented information showing the history of title to the property as far back as 1953. He claimed a circuit court decision then determined this property in question privately owned by Stanley and Lucille Brandeis, who subsequently sold it to the Door County Cooperative.
An expert attorney hired by the city, John Green, testified that a determination may have immense repurcussions around the entire State of Wisconsin for owners of filled lakeed. He argued that because the city was not party to filling the property in question it should not be prohibited from development on the lakebed.
City Administrator Josh Van Lieshout argued that the DNR adopt an ordinary high water mark based on the 1954 shoreline. He said development will enhance public access to water and recreational activities.
Thomas Herlache, chair of the Waterfront Redevelopment Authority, said not using the 1955 shoreline designation as the ordinary high water mark would open Pandora's box. There are many properties in Sturgeon Bay, he said, that could be challenged if the DNR does not stand behind the 1954 shoreline maps.
Former City Plan Commission member Laurel Brooks blamed the current city administration for ignoring the will of the people and forcing a different development than originally presented. She claimed far too many decisions are made in closed meetings. Land in original plans dedicated to be public places, she claimed, changed into facilities for private profit. She said the current city administration has a willful disregard for the will of the people and stonewalled a settlement agreement.
Sturgeon Bay Council Member Barbara Allman, who represents the west side waterfront, argued for adoption of a settlement agreement between the city and Friends group. That agreement, rejected by the WRA, would provide opportunity for a hotel and other waterfront development while protecting areas under the public trust doctrine as well.
Sturgeon Bay City Council member Kelly Catarzoli called on the DNR to make a decison using history and science, not politics. She claimed a significant amount of information was kept from council members by city officials. She said the city officials purposefully avoided asking the DNR for an ordinairy high water mark determination and moved forward with private development plans when the location of the proposed hotel was already under question. She quoted emails between City Community Development Director Marty Olejniczak and the DNR she claims indicate the city knew the land in question was not appropriate for development but the city went ahead anyway. Catarozoli also said the current administation prevented a council vote on formally asking the DNR for an OHWM determination, something she says could have avoided controversy and litigation. Catarozoli concluded her testimony by asking the DNR do not reward our city for making risky decisions and that science and law matter, not politics. 5:08 p.m.
The chair of the Friends of the Sturgeon Bay Public Waterfront, Dan Collins, has concluded testimony in which he cited significant maritime work going on in Sturgeon Bay in 1942. Collins, a licensed engineer, provided evidence indicating six to eight feet of water surrounding the Teweles and Brandeis granary between 1942 and 1955.
Collins was followed by fellow-plaintiff in the Friends lawsuit, Carri Anderssson. She also shared photos and maps supporting a determination of an ordinary high water mark similar to that affirmed by the judge in the case won initially in circuit court by the Friends group.
A professional geologist is now testifying. Lori Huntoon just stated she will provide evidence the entire area in question is filled. She is providing evidence from soil borings that support the position the land in question is filled, not natural accretion. 4:40 p.m.
Shawn Fairchild is testifying now, citing more than 50 newspaper articles dating back to the 1800's that make references to the west side waterfront being artificially filled. He shared photographs taken of recent excavation showing cinder blocks and other fill, including beer bottles from the early to mid 1950's. 4:26 p.m.
Christie Weber is now testifying. She introduced herself as the President of the Sturgeon Bay Historical Society. She is also a plaintiff in the litigation filed by Friends of the Sturgeon Bay Public Waterfront. Weber is sharing a series of photographs from newspapers and a 1930 Sturgeon Bay High School year book. The pictures indicate water surrounded the Teweles and Brandeis dock with the water of Sturgeon Bay. By proving the site of proposed development is reclaimed lakebed, private development is prohibited under the Public Trust doctrine of the Wisconsin constitution. Reclaimed waters, according to the constitution, must be retained for the use of the general public. 4:09 p.m.
Nancy Aten, a member of the Friends of the Sturgeon Bay Public Waterfront, plaintiff in the lawsuit against the city over waterfront development, is citing newspaper articles reporting that owners of the Tewels and Brandeis granary are filling up to 50' around the granary in order to install rail lines to the facility. She also cites maps and newspaper articles making clear that what is now the intersection of Maple and Neenah Streets were underwater in the late 1800's and early 1900's.
Aten is also providing information that when the property was owned by Door County Co op additional fill was deposited in the immediate area of the granary. 3:55 p.m.
The fourth person is now testifying about the determination of the ordinary high water marks on Sturgeon Bay's west side.
With apologies for possible spelling errors, the four to testify so far include Mary Ann Ewig, Claire Morkin, Laurel Hauser and Kathleen Finnerty. The testimony is focusing on maps and real estate plats that those testifying support the determination of shoreline and ordinary mark in a position that would preclude private development on city lot 92, current location of the granary building.
Dan Helsel predicted that the first 90 minutes would be used for comments from those who support an OHWM that would limit or preclude development on lot 92 with testimony from the city and other interested citizens to follow. The hearing is set to adjourn no later than 7pm. 3:47 p.m.
Thomas Herlache, chair of the Waterfront Redevelopment Authority and Sturgeon Bay Mayor Thad Birmingham along with city council members David Ward, Kelly Catarozoli and Laurel Hauser are attending the hearing. City Attorney Randy Nesbitt and City Administrator Josh Van Lieshout are also attending.
The Department of Natural Resources hearing to determine the ordinary high water mark on Sturgeon Bay's west side waterfront got underway at 3pm in the Door County Library.
The explanation of the process was provided by Dan Helsel of the DNR.
The audio of his opening comment is posted.
More reports will be added to this story as the hearing progresses.
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