A crowd of more than 70 people spilled out of the Jane Greene room at the Sturgeon Bay Library Sept. 6 to hear testimony about the location of the Ordinary High Water Mark (OHWM) on the city’s west waterfront.
The testimony came at a declaratory hearing held by the Wisconsin Department of Natural Resources (DNR) at the request of the Friends of Sturgeon Bay Public Waterfront to determine the location of the OHWM on the city’s west side waterfront. The hearing applies specifically to parcels 92 and 100 between the Oregon Street Bridge and the Door County Maritime Museum.
The Friends group provided lengthy, detailed testimony using dozens of historical maps, photos, articles, and city and other public records to show that the OHWM originally ran through what is now the parking lot behind the Greystone Castle tavern. According to the Wisconsin State Constitution’s Public Trust Doctrine, that would mean all the land between that mark and the current waterline belongs in the public trust and cannot be sold for private development, as the city has tried to do since 2013.
City representatives did not dispute that the parcels in question sit on filled lakebed, but countered that due to the passage of time and historic use of the property, the Public Trust Doctrine no longer applies to the parcel.
“The DNR should keep the Ordinary High Water Mark along the original line of parcel 92,” said Sturgeon Bay Community Development Manager Marty Olejniczak.
Olejniczak said the west waterfront redevelopment project does not violate the spirit of the Public Trust Doctrine, and that a change in the OHWM would reverse guidance the department gave the city dating back to 2013 that resulted in significant public and private investment in the redevelopment plan.
Olejniczak said that guidance led to the city investing hundreds of thousands of dollars to connect sewer and water to the property and in planning, and developer Bob Papke’s $360,000 investment in planning the hotel.
“Clearly the city has made substantial expenditures in reliance on the DNR’s previous high water mark determination,” Olejniczak said. “If the DNR had any concerns concerning the city’s relationship to the Public Trust Doctrine, it had ample opportunity to raise them.”
City attorney John Greene argued that the city is not responsible for the filling performed by prior owners, and argued that reverting to the Original High Water Mark could raise questions for many other city property owners.
Olejniczak pointed out that nobody brought up the Public Trust Doctrine early in the redevelopment planning stages that date back to 2010, but Alderperson Kelly Catarozoli said citizens and council members were kept in the dark about questions the city had about the property.
“A lot of information was kept from us,” Catarozoli said.
As an example, she read from a Nov. 21, 2013, email sent by Olejniczak to city attorneys Randy Nesbitt and Jim Smith, and former Administrator Stephen McNeil regarding issues with the OHWM in which Olejniczak wrote: “I spoke with Tom German from the Board of Commissioners of Public Lands. He was pretty informative of how the Public Trust Doctrine, Lake Bed Grants, Bulkhead Ordinances, etc. play into our situation. Basically, while he stopped short of saying we’re screwed, I think we’re screwed.”
City Administrator Josh VanLieshout and city attorney Randy Nesbitt also testified, as did Tom Herlache, chairman of the Waterfront Redevelopment Authority, and alderpersons Laurel Hauser, Kelly Catarozoli and Barbara Allmann. Alderman David Ward was in attendance. Mayor Thad Birmingham for the first 30 minutes of the scheduled four-hour hearing.
State Representative Joel Kitchens listened to the entire proceeding. Kitchens said Aug. 31 that he will introduce legislation to set how the OHWM was determined in this case as the standard should future cases arise.
“We need to have something more certain because you can’t have every one decided by a lawsuit,” Kitchens said.
The hearing was meant only to collect comments, not to cross-examine speakers or issue a ruling. The comments and presentations given will be used by the DNR to inform its decision on the OHWM. Written comments will be accepted through Sept. 15, 2017. Comments may be emailed to [email protected] or by mail to Dan Helsel, 910 Highway 54E, Black River Falls, WI 54615.
After nearly four hours of testimony, Helsel thanked those who testified and said he has no official time frame for a ruling, but said the DNR will work as quickly as possible. The ruling will be the department’s final determination, but that does not preclude it from court challenges.
Editor’s Note: A condensed version of this article will appear in Friday’s print edition of the Peninsula Pulse, which went to press while the hearing was still in progress.