Opinion Archives for 2017-09

Letter to the Editor: Weidner's "Pagel Paradox"


By Donald Freix, Fish Creek




The paradox is this.  How can an industrial, "factory farmer," dairy producer/owner/investor and industrial quantity liquid manure producer also be in charge of a county committee overseeing issues concerning protection of surface and ground water quality, and related public health and safety and non-farmer owned market property values, when this industrial production model has been determined to be the major source poisoning the natural environment everywhere they are situated?  Kewaunee County citizens have stood up and simply asked for a committee chairperson change, have had their pleas, "aired," but, as it appears from the public response from County Board Chair Weidner, that will be the official extent of action that is ever to be allowed.

 

Mr Weidner's soliloquy and subsequent county staff responses to Kewaunee County residents did not address the actual concern brought publicly at last week's Personnel, Advisory and Legislative Committee meeting.  Attendees heard talk about the judicial legal requirements to remove someone from elected office, which was NOT being requested.  They heard about how the county views, "conflict of interest," and official thresholds needed to be met for, "misconduct in office," which also were NOT being requested.  Mr Pagel spoke about how he sees his own role as industrial dairy producer and Chair of the Land and Water Conservation Committee.  Absolutely nobody requested Mr. Pagel's views about himself and that was NOT the issue or the question.  Weidner's personal, committee chair appointment criteria were not being requested by anyone, either.  None of this entire evasive response to the public actually addressed the concerns raised by those residents and citizens who had written to and/or spoken before the County Board Chair about the, "Pagel Paradox."

 

The, "Pagel Paradox," the public's perception of a potential for conflict of interest was being questioned and Mr Weidner was being asked to simply put that question to a vote before the entire County Board, as is required for Committee Chair change.  Removal of Mr Pagel from his Committee Chair position is NOT on the Kewaunee County Board meeting agenda for September 19.  The public perceptions expressed will unfortunately remain unaddressed until their County Board Chair Robert Weidner decides to call for a vote.  Action other than obtuse verbal misdirection, non-applicable lip service to citizens heard last week is required.  Why a vote on this question is not happening remains a mystery to most people involved.  This failure to call for a committee chair removal vote, here, defines failure of responsive, concerned, elected public leadership.

Letter to the Editor: Comments from last week's Department of Natural Resources hearing


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. 


Rep. Kitchens clarifies his statements on ordinary high water mark legislation


By Rep. Joel Kitchens




While I normally make it my policy not to respond to letters to the editor, I feel it is necessary to clarify my position regarding the Sturgeon Bay waterfront, which Nancy Aten has intentionally misstated.  I have consistently stated throughout this controversy that I would not introduce legislation to set the Ordinary High Water Mark for this property.  The dispute has gone to court, as is appropriate, and the judge ruled that the experts at the DNR should set the OHWM.  Once the DNR has announced their decision, it is my intention to introduce legislation to reaffirm it, saying that the legislature recognizes their determination as the OHWM.  I am announcing my intentions before we know what their determination might be, so that I cannot be accused of taking sides in the dispute.  I am doing this out of concern that one side or the other will appeal the decision and this could drag on for years.  I do not believe that a continued court battle is in the best interest of the citizens and taxpayers of Sturgeon Bay.

 

Ms. Aten states that the determination should be made by "knowledgeable natural resources professionals" and I could not agree more.  Despite her statements, determining an OHWM on filled land is not a simple matter.  If it were, the DNR would not have taken these many months to make it.  The intent of any legislation I might introduce is to support and reaffirm the decision of these professionals.

 

To her second point, I did not sit on the board of the Wisconsin Coastal Management Council in 2011-2013 when grants were issued to the city of Sturgeon Bay, but the grants were entirely appropriate regardless of the OHWM determination.  These grants were consistent with the public trust and served to provide public access to the waterfront.

 

The Public Trust Doctrine is a vital part of our constitution and must be protected.  The framers of the constitution were intent on protecting navigation, however, and clearly did not envision the circumstances we face today, particularly in dealing with historically filled lakebeds.  My goal is to support the DNR professionals in their determination and put an end to the politicizing of this issue.  I love Sturgeon Bay and it is painful to watch the division and bitterness that has arisen.  Our city is not defined by this one little parcel of land.  It is time for a decision is to be made and for the healing process to begin.

A Friend of the Sturgeon Bay Public Waterfront Questions Comments by Kitchens


By Nancy Aten



At the recent public hearing in Sturgeon Bay, abundant facts and evidence were shared to assist DNR staff in determining an Ordinary High Water Mark on the westside waterfront. It is our hope that the result will honor public rights to public land. Such an outcome is what the Friends of Sturgeon Bay Public Waterfront have been working for: respect for the process and the Public Trust Doctrine.


 


The Public Trust Doctrine protects our water and our shorelines. Filled lakebeds are common in urban areas where past maritime uses are being converted to new uses – and public rights to trust land need to be defended. There is an established legal process that municipalities or other property owners can and should follow to determine private versus public land. The City of Sturgeon Bay could have saved time and taxpayer money by doing so here. The Friends of the Sturgeon Bay Public Waterfront held the City accountable to the process, and we hope that it will result in an Ordinary High Water Mark determination that respects the Public Trust Doctrine.


 


Properly administered, the Public Trust Doctrine is fair. It helps communities achieve lasting and significant economic development returns. When filled lakebed parcels (for example, docks that were built when shipping and rail were crucial transport, or for commercial fishing) convert from past maritime uses, then protecting these "made lands" as the public asset they are broadens the economic opportunity in all surrounding lands. The Public Trust Doctrine is a smart economic development tool that benefits everyone, not just a few.


 


We also hope that the state legislature embraces its charge to uphold the Public Trust Doctrine. Rep. Kitchens said recently, "Other communities should not have to go through this in the future." This may be his justification for legislation to set the Ordinary High Water Mark along the west waterfront. Remember though, that the City of Sturgeon Bay set out to circumvent the Public Trust Doctrine, asking for political favors, ignoring its obligation as a public servant and creating many of its own preventable problems. Legislation is a solution in search of a problem that doesn't exist with the constitutionally-mandated Public Trust Doctrine. There is an established legal process for DNR to determine the Ordinary High Water Mark, and that is what DNR is doing.


 


Rep. Kitchens also said that, "The issue is complicated. The basic problem is that there is no definition of OHWM on these filled lands." He also recently quoted someone from the DNR, perhaps not a scientist, saying that "this is an impossible task." These assertions are not true. In the face of the wealth of historical evidence from pre-settlement onward, including detailed maps, taking the position that 'we just don't know' or 'we just can't go back in time and determine the facts' is disingenuous.


 


Determining an OHWM is not complicated or difficult. Finding a perfect OHWM on altered property may be complicated and difficult, but finding a reasonably approximate OHWM is quite straightforward. Determining the OHWM approximately (within tens of feet) on filled lakebed can be done using readily available online resources.


 


Michael Cain, who served as DNR's primary attorney in the area of water regulation until his retirement in 2008 (and thereafter was periodically called on by the state to review documents in order to assure continuity in the administration of these laws), provided written testimony, read at the recent hearing. He explained that the DNR performed OHWM determinations in filled lakebed situations in approximately three to ten cases each year, when such boundaries were in dispute. Mr. Cain spelled out the practice and procedure for doing such determinations (three to ten of them each year). He explained that the DNR "sought to identify the natural and historic shoreline of the affected lake or stream at the time of statehood. This process was conducted through a review of cartographic, documentary and physical evidence of the natural and historic shoreline." He spells out numerous historical resources, "routinely sought and collected" by agency staff in this process. Mr. Cain also says soil borings, where available or required to be obtained, would be analyzed by specialists, "in order to determine the boundary of the natural and historic shoreline and to determine whether filled areas located waterward from that boundary resulted from accretion or as a result of legal or illegal filling." Soil borings throughout the west waterfront showing artificial fill have been available within DNR and from the City; these were summarized by another expert at the hearing yesterday. Far from being 'impossible,' this was a regular task performed through an established procedure on multiple sites each year by DNR.


 


My advice for Rep. Kitchens is two-fold. First, recommend that the DNR review and, as needed, improve documentation of straightforward, science-based guidance in order to increase the consistency, efficiency, and fact-based OHWM determination process. There is good reason to let the system work as it has for over 100 years. We need knowledgeable natural resource professionals – not legislators – to create science-based guidance, and use that guidance to determine OHWM by applying local facts to the local site-specific shoreline. The system does not need fixing. It just needs clarification, good communication and continuity.


 


Second, as Rep. Kitchens serves on the board of the Wisconsin Coastal Management Program, before the WCMP gives grants for coastal management work, have them ensure that every municipal grant recipient understands the Public Trust Doctrine and obtains an OHWM determination through a standard, transparent process with DNR. I wish WCMP had followed this procedure for the grants it issued to Sturgeon Bay, circa 2011-2013.


 


The Public Trust Doctrine benefits everyone in Wisconsin. When our state was founded, the United States government required only two things: that any new states created in the Northwest Territory must have the same rights as other states, and that navigable waterways be forever free to the public – i.e., the Public Trust Doctrine. Upholding that public right is our shared bond.


 


Nancy Aten


Citizen and member, Friends of the Sturgeon Bay Public Waterfront


Civil Discourse: Please. Raise My Taxes...and Keep Doing It


By Roger Utnehmer



Civil Discourse is an occasional attempt to restore civility to our civic discourse by DoorCountyDailyNews.com President and CEO Roger Utnehmer



Here's a message for Governor Scott Walker and members of the Wisconsin State Legislature.

Raise my taxes...and keep doing it every time the consumer price index goes up.

Well, just the gas tax.



Wisconsin faces a more than $1 billion transportation budget deficit.  Roads and bridges throughout our state have outlived their design life.  Construction projects are delayed and maintenance deferred.  The public demands safe roads. Politicians love new highway construction as a reward for "bringing home the pork."



The reality that 99.9% of the tourists who visit Door County get here on a highway means raising the state gas tax is important for our economy.  The need to better fund transportation is irrefutable.  More energy-efficient vehicles compounded by growth of hybrid and electric cars mean even less gas tax revenue in the future, exacerbating budget problems that are getting worse every year.



A gas tax increase is the fairest way to pay future bills.  The more you drive, the more you pay.  And rather than increase registration fees for residents, a gas tax increase will capture tourist dollars from those who do not register vehicles in Wisconsin.



Wisconsin's gas tax was indexed to inflation from 1985 to 2005.  The decision to end matching gas tax automatic annual increases to inflation got the transportation budget in the poor condition it is today.  The result is that twenty-cents out of every dollar in transportation costs now pays interest on the debt incurred to make up for lost gas tax revenue and meet public demand for construction and maintenance.



Like a minimum wage pegged to the consumer price index, matching gas tax increases to inflation will mean an annual meager increase rather than an inevitable much larger one to solve the billion dollar deficit problem.  Republican legislators who control Wisconsin government need to determine if they are "tax and borrow" legislators or "tax and spend" legislators who stop borrowing hundreds of millions of dollars a year for transportation.



Wisconsin's gas tax, stuck at 30.9 cents a gallon since 2006, is above the national average but well below Pennsylvania's 58.2 cents a gallon and well above Alaska's 12.25 cents per gallon.  There is room to raise the gas tax and index it to inflation without inflicting unreasonable economic hardship.  It is a much better alternative to bonding and borrowing.



Do not blame your mayor, city council representative or county board supervisor for the poor conditions of streets, roads and highways.



The fault lies squarely on the "no tax increase" legislators who are borrowing us into future generations of debt.  It's time to end the freeze on automatic gas tax increases pegged to inflation and time for those who use Wisconsin roads to pay just a little more for every mile they drive.



That's my opinion.  I'd like to hear yours.




Civil Discourse: Affordable Housing is a Basic Human Right


By Roger Utnehmer



Civil Discourse


An Occasional Attempt to Restore


Civility  to Our Civic Discourse


By Roger Utnehmer


DoorCountyDailyNews.com


President and CEO


Affordable Housing is a Basic Human Right


A small, four-year-old boy, swollen bruise on his left cheek, enters a McDonald's in Milwaukee.  He wanders from table to table looking for scraps of left-over food.  A single mother with two kids watches her meager possessions piled on the curb, evicted by her landlord.


Children with no place to sleep dozing off at school, are often hungry, lethargic and truant.


One seventh grade boy is in his fifth school in one academic year, the victim of serial evictions and a couch-surfing lifestyle.


These and other tragic stories are depicted in the best-selling book, Evicted; Poverty and Profit in the American City, by Matthew Desmond.  The author follows eight families through Milwaukee's poor south side, embedded in a mostly-white trailer court and from a predominantly-black boarding house in the north-side ghetto.


The author makes a compelling case that stable housing is the foundation of democracy.  He argues that you cannot have stable neighborhoods without stable homes, or stable communities without stable neighborhoods.  The rising eviction rates cited in this book are destabilizing our communities and destroying civic engagement.  People too poor to pay for food have no energy to make a neighborhood safer or a school more successful.


Without a home everything else falls apart.  Eviction, according to Desmond, is a cause of poverty not a condition.  Stories about abused women evicted because they called police to stop a brutal beating or a mother who lost an apartment because an ambulance called for an asthmatic child was considered a "police call" shed a needed insight into poverty.  "The rent eats first," Desmond quotes a source as saying.


Many of today's urban poor are paying up to 70% and more of their monthly income to landlords who profit on off the misery of the poor.


The author argues that affordable, safe, stable housing must be considered a basic moral and human right.  Solutions include housing vouchers that cap rent at 30% of income with the federal government paying the difference up to prevailing rental rates.  He also supports providing legal representation to the poor facing eviction cases in court.  


Here in Door County affordable housing is not as critical in Milwaukee's poorest neighborhoods, yet it is a problem.  As Desmond makes clear, stable homes create stable communities.   


Our communities can be made more stable by assisting efforts to provide clean, safe, affordable housing to more families.  Habitat for Humanity is the organization doing this today with an impressive record of success.  Habitat homes are on the tax rolls.  They generate revenue to support local government.  The sweat equity part of every home teaches hard work and contribution.  The monthly mortgage payments mean families learn to budget and prioritize expenditures.  The pride of ownership results in better neighborhoods, safer schools and more stable employment for parents who worry less about a place to live.  


Many employers in Door County cite a labor shortage as their most critical issue.  Those employers should be Habitat for Humanity's most generous supporters and active volunteers.  An adequate labor pool is only possible with affordable housing.


Habitat for Humanity is in the business of providing it.


Spend a few hours reading Evicted.  Your heart will be touched, your mind expanded and your social conscience deepened.  Even the most conservative of my friends may come to understand that homelessness costs our country much more than affordable housing.  We have a moral imperative to declare safe, stable, affordable housing a human right we embrace for all.


That's my opinion.  I'd like to hear yours.


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