In a 4 to 3 vote, the Sturgeon Bay City Council approved a resolution to seek special legislation to define the ordinary high water mark in a way that would allow the West Waterfront hotel development to move forward.
The move comes just six days before city representatives are to meet with the Friends of Sturgeon Bay Public Waterfront and the Department of Natural Resources (DNR) in Madison to try to resolve the long-running dispute over the project. City attorney Randy Nesbitt said his conversations with attorneys representing the friends group indicated that the move would have “a chilling, if not killing, effect on negotiations.”
The Friends group maintains that the hotel development proposed for parcel 92 on the west side of the Maple to Oregon Street Bridge is within the ordinary high water mark (OHWM). Wisconsin’s Public Trust Doctrine, as part of the state Constitution, explicitly prohibits the use of land below the OHWM for private purposes even if the water has been filled in, such as the case on Sturgeon Bay’s west side.
In February, Judge Raymond Huber of Waupaca County ruled that the hotel would sit on filled lakebed, placing it within the public trust. In April, the DNR contradicted that ruling in a letter to Mayor Thad Birmingham in which Russell Rasmussen drew a preliminary high water mark that would allow for the hotel development. The DNR has set a declaratory hearing for Aug. 3 to make a final determination on the high water mark.
Alderwoman Laurel Hauser, who with Alderman David Ward was appointed to represent the city in negotiations, was incensed by the city’s decision to pursue legislation that she said would undermine the negotiations.
“Just two meetings ago we voted unanimously to seek negotiations,” Hauser said. “Now is not the time to approve this resolution. The typical way an ordinary high water mark is determined is by the DNR, and we have that declaratory hearing with the DNR on Aug. 3. After that is the time to discuss this. Give us this time to negotiate in good faith.”
David Ward, who with Alderman Stewart Fett brought the resolution forward, described the legislation as a parallel path that does not negate negotiations with the Friends group.
“We had this on the agenda May 2,” Ward said. “I moved to table it to give us some time to do settlement.”
Ward said he sees the legislation as an opportunity to determine the ordinary high water mark line for certain. That would determine what part of parcels 92 and 100 next to the Door County Maritime Museum could be privately developed. He said that if the city thinks it may have to pursue legislation at some point, waiting to pass the resolution would be dishonest as well.
Alderman Kelly Catarozoli was confused by the urgency to seek legislation as well.
“What’s the point of negotiating if you’re going to threaten legislation for a line that there couldn’t possibly be a scientific explanation for?” she asked.
Birmingham defended the resolution, saying that Judge Huber suggested legislation as a possible solution to the impasse in his ruling in February.
“We could have a settlement before this passes,” Birmingham said. “There is nothing that would stop the city from honoring the settlement if this legislation passes. So I think it makes good sense to go ahead.”
Birmingham said the next step is to forward the resolution to Rep. Joel Kitchens and Sen. Frank Lasee. Kitchens said June 7 that he does not intend to introduce the legislation.
“I understand the city’s desire to explore every option, but I still prefer this be settled through negotiation,” Kitchens said. “I don’t believe legislation should have a bearing on negotiations, however. Ideally, they negotiate and neither side gets 100 percent of what they want. Just settle it.”
Hauser and Catarozoli pressed Ward and Birmingham to articulate why the special legislation was necessary right before long-sought mediation was to take place, but received no clear answer. Hauser speculated after the meeting that the resolution was rushed to slip it into the 2018-19 state budget.
Ward said he still believes the June 12 meeting represents a good opportunity to settle, but he said the council should not rely on that happening. After the meeting, Hauser said the resolution puts the two sides farther away from a settlement.
“Those who voted yes heard that this would negatively impact negotiations,” she said. “My goal in this was not just to determine the Ordinary High Water Mark, but to have a community that can talk to each other again. Talking to people around the city, I really felt people saw this as a chance to do that with everyone at the same table.”
Aldermen Ward, Fett, Ron Vandertie, and Richard Wiesner voted in favor of the resolution. Aldermen Hauser, Catarozoli, and Barbara Allmann voted against it.