By Laurel Brooks
The following comments were made by Laurel Brooks at a DNR Public Hearing to determine the ordinary high water mark of Sturgeon Bay's west side waterfront and are submitted here as a Letter to the Editor.
We are here to consider an issue of land use, a matter which has always been subject to scientific, legal and political influences.
The United States has, from its inception, prided itself on being governed by the rule of law, equally applied. The framers of our constitution, imbued with this pride, adopted the long view in drafting this document, recognizing that this vast country, heretofore untouched (by them), would expand, and that it was imperative that some elemental portions of the land be preserved to the public benefit, forever free of the pressures of commercial interests. These men, businessmen themselves, recognized the risk of allowing the short-term exercise of human desire to rule the day and imperil the future. Thus, the Public Trust Doctrine was conceived, and when Wisconsin achieved statehood, the Doctrine was inserted as a necessary and precious element into our own state constitution. This Doctrine served to protect not just wild places, which confer both measurable and immeasurable benefits on all species, but also what became lands within municipal boundaries for the present and future benefit of all people.
This brings us to the relatively small municipality of Sturgeon Bay on this day, to consider its unwillingness to govern itself in a manner respectful of the public interests.
I served on the City Planning Commission from 2006 until 2016. In 2011, TIF #4 was defined and its intended development disclosed to the public. That original plan dedicated much of the land, including the land subject to this dispute, to public use, and uses accessible and friendly to the public. The City Administration sought broad approval for this proposal by displaying and discussing it in many different venues. That general approval was gained in 2011 and as far as the residents were concerned, the City was proceeding to put together the various pieces of the plan necessary to its success.
Three years later, in September, 2014, came the first openly public indication that the approved plan had been scrapped and supplanted with quite another and utterly different one. The new plan dedicated what had been public space to private for-profit uses. At that point, the public refocused its attention on the development site known as the West Waterfront, asked questions, raised objections, and generally demanded to be heard. At numerous public meetings, hundreds of citizens expressed their shock at the lack of notice regarding this change and the level of risk the public was being asked to assume for a plan that would confer massive benefits on a few beneficiaries.
The current administration was unwilling to engage with its constituents and attempted to proceed, with willful disregard for such fundamental considerations as title to the property, determination of the OHWM and the terms of the Public Trust Doctrine. Despite frequent requests from residents to work together to explore alternatives, the mayor and council remained unwilling to to acknowledge the interests and legitimate concerns expressed by its constituents. Their determination to proceed with a flawed plan, despite being informed of the likelihood of litigation, led to an expensive lawsuit that has been damaging to the city.
The plaintiffs in that lawsuit prevailed. However, the current administration was unwilling to abide by the clear terms of the judge's ruling. Though advised to do so by the Court, it delayed opportunities to work toward a negotiated settlement until June of this year. When a settlement was negotiated by two sitting members of the City Council, again at great expense to the city, the Mayor refused to bring the agreement to a vote by Council.
After a frustrating delay, the Council approved the agreement, but that vote was rendered ineffectual by the members of the Waterfront Redevelopment Authority, unelected public servants, when they voted to reject the agreement.
So, we see that citizens have made heroic efforts to engage with their representatives in an open political process (except when the political process has been conducted in closed session, as is done with alarming frequency in Sturgeon Bay).
We see that a group of citizens at great personal cost have prosecuted a lawsuit against the the current administration. This was expensive and time-consuming on both sides, but at regular intervals, the plaintiffs offered opportunities for a negotiated settlement. The administration either ignored or adamantly refused to consider this option. Thus, citizens have brought the legal system to bear on this problem, succeeded in court, only to have the current administration continue to stonewall.
And now this Administration hopes the DNR will effectively override the will of the residents, the findings of the Court, and the negotiated settlement passed by the City Council. The current administration failed to present sufficient evidence to the Court to persuade it that historic high water marks should be disregarded. The City has failed to live in good faith with its citizens and, as an instrumentality of the State, it has willfully disregarded its obligation to uphold the duties imposed by the Public Trust Doctrine, which is an integral tenet of the Constitution of the State of Wisconsin. And now the legislative representative from the 1st District, Joel Kitchens, has announced that after your determination, he will introduce legislation to officially recognize that OHWM with the intention of eliminating any legal right to appeal the decision by either party. I am not a lawyer, Mr. Helsel. I don't know if this action is constitutionally permissible. However, it is my fervent hope that your understanding of the Public Trust Doctrine and your placement of the OHWM will demonstrate to everyone in the State of Wisconsin, including this Administration, that public land is not for sale and that the pressures of private enterprise and irresponsible planning are not sufficient to deprive Wisconsin citizens of the protections guaranteed by their constitution.