Spring Forward Sturgeon Bay!

03 November 2019

 
The issue of  the Ordinary High Water Mark location at the west waterfront parcel is finally over! The opportunity for the last contrarian appeal expired late last month. Judge Huber’s ruling in February 2017 which affirmed our constitutional right is controlling. The WDNR’s January 2019 determination of the OHWM at the Meander Line is final. The roughly 320 feet of filled lakebed from the Meander Line to the bulkhead is held in trust for the people.

This happened because of you!

Each of our community of Friends took the lead at some time to; speak at a meeting, send a letter, run for office, write an email, post on facebook, circulate petitions, bake cookies, drive to Madison for a meeting, research a topic, host an art show, start an organization or make a donation. Our wonderful, brilliant, leaderless collective of Friends got the job done. The community found a way and pooled what we had; our time, talent, voices, money, song and spirit. Heartfelt thanks from all of us, to all of us. And a special thank you to the plaintiffs for taking the step of publicly speaking to power.


Sometime in our lifetime and beyond people will visit the Sturgeon Bay waterfront and remark that they love the way this place feels and they might say “I wonder who did this…” well, it was you! Your work will have a lasting effect on Sturgeon Bay and it is inspiring other communities to save what they have.

Let’s not fall back, let’s spring forward and continue to live the reality of a Sturgeon Bay community that is vibrant, caring, interesting and welcoming.


 

OHWM Ruling

03 January 2019

A GREAT DAY!! DNR ruling on West Waterfront approved by City and Friends sets clear path for public and private development


The Friends of the Sturgeon Bay Public Waterfront are pleased to announce that the WDNR has issued a Declaratory Ruling establishing the exact location of the Ordinary High Water Mark (“OHWM”) on Sturgeon Bay’s Westside Waterfront.

 

“This is a victory for Sturgeon Bay, for Wisconsin and defenders of the Constitution everywhere”, said Shawn Fairchild of the Friends. “Public rights matter. The Public Trust Doctrine has been championed by the Friends and the current City Council for the Westside Waterfront”.

 

Dan Collins of the Friends said, “The location of the OHWM at the US Government 1835 Meander Line for Parcel 92 has the support of both the City Council and the Friends. The City has provided a survey of the line. The DNR Ruling states: ‘The City of Sturgeon Bay and the Friends of Sturgeon Bay Public Waterfront et. al. subsequently conferred and negotiated and now agreed to settle the issue of the location of the meander line/OHWM on Parcel 92 as declared in this department ruling and as shown on the attached Site Plan’” .


“This definitive line protects the City’s investments in future developments. A strong Public Trust Doctrine is an important tool for revitalization. Public open space along waterfronts is a rare commodity and the cornerstone of a strong, secure economy. It is also a gift to the future,” said Shawn Fairchild. “We are glad that the delineation will offer both an outstanding waterfront parcel for public space surrounding the former Granary location and ample lands available for commercial development”.

 

“For years we have not wavered from the best interests of the public, relying on science and the State’s Constitution to lead the way. We are very excited about this decision. It is a great start for 2019 and the opportunities ahead for the citizens of Sturgeon Bay”, said Kathleen Finnerty of the Friends.

Read the WDNR Ruling

05 April 2019

Also... The Judge Huber Ruling of February 2017 is now permanent. The appeal of that ruling has been voluntarily withdrawn.

 

(Huber's ruling said that the City needed an OWHM determination on Parcel 92... and noted that it seemed to be all or nearly all of Parcel 92 in the Public Trust below that OHWM).

26 October 2019

Also... The WDNR OHWM Determination of January 2019 is now permanent. The appeal of that determination was dismissed in late August, and the period for appeal of the dismissal has now expired.

Judge Huber verbal ruling - 2017 Feb 10
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2018 Progress

03 October 2018

We are pleased to see signs of progress toward resolution in the recent Common Council agendas, but are frustrated with delays. It seems like this would have been resolved some time ago if the City's plate weren't so full and seemingly complex.

08 June 2018, 21 May 2018

The DNR’s recent withdrawal of their OHWM ruling, which acknowledges the lack of evidence for their flawed line, is very good news. Judge Huber’s 2017 permanent injunction against the sale of Parcel 92 for private development stands. The DNR has indicated that it can’t offer a specific or expeditious timeline for taking further action on the Friends’ petition for an OHWM ruling, and has therefore suggested that the City and the Friends together bring forward a proposed fact-based OHWM for DNR consideration. Such an OHWM, if approved by DNR and Judge Huber, would then modify the injunction to allow the non-public-trust portion of Parcel 92 above the OHWM to be sold. And we would be done. Friends are working to resolve this matter expeditiously.

There is now only one legal action pending (although it is paused for the moment), and that is the City’s appeal of Judge Huber’s final March 2017 ruling. With the DNR recently re-asserting that the Public Trust Doctrine protection does indeed apply to filled lakebed, we hope that the City will withdraw their appeal.

As simply as possible:

1. "Everyone knows this is all fill" (City development director). Filled lakebed is subject to the State Constitution's Public Trust Doctrine protection, restricting the filled land ("made land") for approved public and maritime use.

2. The 1873 City Plat map (left image) is the first plat map/survey in Sturgeon Bay, and the shoreline is shown. Other later maps actually show some shorelines landward of this.

3. The City's soil borings (right image) clearly confirm the 1873 shoreline is about right. Only one soil boring, WMW6, in the corner near Maple, indicates it is near the shoreline. The others show several feet of artificial fill (the old dock).

That's it. Seems simple.

2017-2018 Updates

30 March 2018

See good news about the Historic Granary. And, once again, waiting on DNR.

28 January 2018 STILL waiting.

See media, DNR Dragging Feet on High Water Mark Declaration. "Rasmussen said DNR staff is looking at the historical record, a wide variety of maps, and other records to determine a line. He did not say if the department has turned up any new evidence other than the trove of historical documents, maps, and images presented at the September hearing."

04 January 2018 STILL waiting.

While we await the DNR's Ordinary High Water Mark determination, with hope for a fact- and science- based determination based on abundant and consistent evidence... (waiting since the public hearing September 6th)...

 

The historic Granary still stands, but hope is slim. On December 19th, a majority of City Council voted to violate state statute - and proceed to raze without properly considering repair options. More info here.

22 November 2017 Still waiting. Meanwhile, distraught to report we lost the Granary.

While we await the DNR's Ordinary High Water Mark determination, with hope for a fact- and science- based determination based on abundant and consistent evidence...

 

Yesterday we lost the 116-year-old historic iconic Granary, when Sturgeon Bay Council inexplicably voted 4-3 to turn down $1.4 million dollars of private donation for public benefit, and to spend taxpayer dollars to take it down instead. More info here.

20 November 2017 Still waiting - and hopefully more progress on Granary in the meantime

While we await the DNR's Ordinary High Water Mark determination, with hope for a fact- and science- based determination based on abundant and consistent evidence...

 

Sturgeon Bay Historical Society proposed contract is on tomorrow's Council amended agenda. Please read it and come to the Council meeting at noon tomorrow, speak in support of a YES vote on closed session agenda item #14-b-1 to accept the SBHS contract to engage Meyer Borgman Johnson for a granary structural assessment and repair using private funds, and more. (And a NO vote on agenda items #15 and #16 to raze the granary). More info here.

10 November 2017 Still waiting, and making a tiny bit of progress on Granary

While we await the DNR's Ordinary High Water Mark determination, with hope for a fact- and science- based determination based on abundant and consistent evidence... City Council voted to allow 60 days for two firms to re-assess the Granary structure. The City is acting responsibly. To use private funds from Sturgeon Bay Historical Society to secure and assess the structure is a prudent step - the City is taking immediate action to safeguard the granary structure while determining whether it can be repaired. More info here.

04 November 2017 Still waiting, and also nervous for Granary

While we await the DNR's Ordinary High Water Mark determination, with hope for a fact- and science- based determination based on abundant and consistent evidence... the fate of the Historic Granary which still sits on that big old dock will be determined at Common Council November 7th. More info here.

26 October 2017 $1,250,000 Committed to Restoration of Historic Granary

While we await the DNR's Ordinary High Water Mark determination, with hope for a fact- and science- based determination based on abundant and consistent evidence... we have great news for the iconic Granary which still sits on that big old dock.

Press Release: The Sturgeon Bay Historical Society (SBHS) is pleased to announce that a donor family
has committed $1,250,000 toward the repair, restoration and future maintenance of the historic 1901 Teweles & Brandeis grain elevator, situated on the City of Sturgeon Bay’s westside waterfront, for public benefit.

See this SBHS site for more information.

Read the letter from the Door County Community Foundation to the City.

19 October 2017 Help Us Save the Granary

The numbers don’t add up…
The Teweles and Brandeis Granary was built 116 years ago. 4 years ago, a professional design and structural engineering firm, hired by the City, concluded that the elevator was $150,000 shy of being stabilized and ready for a future use. Less than 7 days after the City learned the Sturgeon Bay Historical Society had the funds in-hand, a raze order was issued on the basis of anecdotal “evidence” and no complete study. Something’s rotten in Denmark.

Please Pledge Your Support.

Letter to City from John Hauser

Letter to City from Sara Powers

Letter to City from CFTA

19 October 2017 Historic Granary at risk

 

City prepares to tear down Historic Grain Elevator without proper study.

See the 2013 Structural Analysis of Grain Elevator from engineering firm Meyer Borgman Johnson. In 2013, the City of Sturgeon Bay hired Meyer Borgman Johnson (MBJ), a professional structural design and engineering firm, to conduct a thorough structural analysis of the granary’s superstructure. After taking measurements, the firm stated, “a detailed computer analysis model was constructed to capture the elevator behavior. The model includes over 1,000 pieces, over 700 plates, and over 1,200 connections. Twenty-six different load combinations of wind, self-weight, and live load were considered… The computer analysis was supplemented by hand calculations and MBJ analysis spreadsheets to determine loads and to confirm the computer results.”

In summarizing its findings, MBJ goes on to state, “Based on the information gathered during the site visit report and the subsequent calculations, it is our conclusion that the existing elevator is in generally good condition and retains sufficient capacity to support this intended use, with some modifications.”

13 October 2017 In Another Court Case

 

Another Wisconsin Circuit Court just upheld with strong language the Public Trust Doctrine. See Midwest Environmental Advocates information.

 

"This Court is bound by nearly 120 years of precedent and a long rich history in this State of respecting the Wisconsin Constitution and its fundamental protection of the waters of the State for the enjoyment of all."

02 October 2017 Amicus Brief Filed to City's Appeal

 

While awaiting the DNR determination, unfortunately we are having to deal with the City's appeal of Judge Huber's clear ruling in favor of Friends. Read our response here. And (new), read our Amicus Brief filed today.

“Wisconsin has vigorously followed the following public trust principles: (1) The State holds a ‘legal title’ and Wisconsin citizens have an ‘equitable title’ in the public trust bottomlands and waters of the Great Lakes... Whether filled or unfilled, the bottomlands of the Great Lakes are considered to be fully vested in and owned by the State as sovereign. (2) Control and uses of state-owned bottom lands cannot be transferred except by express legislative grant. (3) If there is an express legislative grant, state-owned bottomlands cannot be conveyed or transferred to private owners or for private purposes. (4) Any transfers of control or authorized uses must achieve a public purpose consistent with the public trust. Any express legislative grant must be based on explicit determinations that establish a primary public purpose (such as public access and uses including navigation, fishing, boating, and recreation) and no impairment of the State’s legal and public’s equitable title in the waters, bottomlands, and public trust uses.”

25 September 2017 We invite your support of Midwest Environmental Advocates

Sarah Geers and MEA have helped us for the last 30 months (see the testimony from speaker 12). MEA has been a true friend to us and an indispensable co-counsel. Now is a good time to show our thanks. Your membership in MEA is the most important way we can show thanks. We have arranged for a 100% matching donation for all donations and memberships for the next 30 days. If you are already a member, thank you so very much. If you are not a member and your resources allow, MEA and the Friends would be honored to have you join as a member of MEA. Please write “Friends of Sturgeon Bay” in the comment field to qualify for the matching program. Thank you.

17 September 2017 DNR Public Hearing and Public Testimony Complete

More than a dozen community members from Friends provided spoken and written testimony at the Public Hearing held September 6th in Sturgeon Bay. Read our compelling testimony of abundant and consistent facts and evidence here.

 

We also provided supplemental testimony prior to the deadline of September 15th.

 

Now DNR staff review all information and proceed with a determination as to Ordinary High Water Mark on Parcel 92.

 

Read our Letter to the Editor here. Thank you to all who provided testimony!

And a reminder to the City: Both Council and WRA and City Atty were reminded in July 2015, prior to any lawsuit, that there was NO OHWM determination on Parcel 92 - by Ald. Catarozoli, by DNR, by MEA, by Dan Collins (Dan's audio below). For video or transcript, let us know.

 

23 August 2017 Notice of DNR Public Hearing

Public Hearing has been officially noticed by DNR; this contains details of how to submit testimony on location of the Ordinary High Water Mark.

 

We are troubled and disheartened by the five non-elected members of the WRA who decided to scuttle the settlement arrived at unanimously by the Friends' delegation and the Council's unanimously appointed delegation -- in opposition to the Council's vote in favor of settlement. But we proceed with facts to the Public Hearing.

21 August 2017 Response Filed to City's Appeal

 

Yes, unfortunately we are having to deal with the City's appeal of Judge Huber's clear ruling in favor of Friends. Read our response here.

"...The City has a duty to protect the rights of the public, and should not be heard to claim a proprietary interest adverse to the public. [...]... the City itself does not have title to Parcel 92 in a proprietary capacity. As a subdivision of State government, however, the City is in a unique position to exercise the duties of the State as trustee to preserve Parcel 92 for public access and uses related to navigation and its incidents."

07 August 2017 Public Hearing Date Planned for September 6th

 

Attorneys for both City and Friends of Sturgeon Bay Public Waterfront met on Friday morning August 4th with WDNR. Items of significance were discussed. One item was the date for the public hearing of the declaratory ruling process, which is planned for Wednesday, September 6th to be held in the Greene Room at the Sturgeon Bay Library from 3 pm - 7 pm. Those wanting to offer testimony informing the Ordinary High Water Mark will be able to do so in writing as well. When we have further details we will share them.

.

Friends remain hopeful that WRA will re-vote to approve settlement, prior to that date. We hope that the WRA members review all of the important information. Atty Nesbitt and Administrator Vanlieshout, who both promised June 14th to actively support the settlement, ought to be working with WRA to reconsider their vote on settlement. The unanimously reached settlement is the sanest, surest, taxpayer-dollar-saving, fastest, most positive route to resolution and brighter days of economic development for Sturgeon Bay.

01 August 2017 Common Council Votes 4-3 in favor of Settlement

 

However, on 26 July 2017, the Waterfront Redevelopment Authority (WRA) voted 5-2 against Settlement. As reported by media, the five non-elected WRA members voted against Settlement. The two elected Council members on the WRA voted for Settlement. We hope the WRA considers full information and re-votes with a majority supporting Settlement.

17 July 2017 Ad Hoc Settlement Committee Recommends Settlement

 

Public statement from the City's unanimously empowered ad hoc settlement committee. It was signed by the committee July 12th, 2017 and read into the public record July 17th. 

30 June 2017 Another Step

 

Attorneys for Friends and for the City have DNR's commitment to move forward with an OHWM determination that is consistent with the parties' agreement.

21 June 2017 Hope

We hope the City acts promptly to ratify the agreement reached June 14, so that the next steps with DNR can proceed.

Press Release (text is below)

 

A delegation of the Friends group and the City’s ad hoc negotiating committee, administrator and counsel met for two days of facilitated discussions (June 12 and June 14) resulting in a stipulation as to the location of the ordinary high water mark (OHWM) of 92 East Maple Street. The negotiating parties anticipate that they will jointly recommend to DNR approval of an OHWM that is parallel to and 60 feet waterward of the original meander line according to the U.S. government land survey of 1835.
Additional elements of an agreement to resolve the pending litigation and appeal include the City’s commitment to an inclusive public process to redevelop the west waterfront site, to strive to maintain a scenic view and public use on 100 East Maple, and to withdraw the City Council’s resolution seeking a legislative designation of the OHWM on 92 East Maple.


The parties’ OHWM stipulation is founded in the evidence presented at trial and respects the circuit court’s previous findings as well as DNR’s 2014 OHWM concurrence determination for 100 East Maple. The parties and DNR recognize that uncertainties remain despite the historical evidence. In recognition of these uncertainties, the proposed OHWM grants the City, as riparian owner, the benefit of the doubt of the range of error inherent in the surveyed meander line, which itself was an approximation of the Lake Michigan shoreline near the time of statehood.


DNR will be asked to declare the OHWM consistent with this stipulation within the framework of the pending declaratory ruling proceeding. Supporting evidence will be placed on the record at a forthcoming hearing which will be held in Sturgeon Bay and open to the public.

(In the two days of discussions in Madison, WI facilitated by Jeremy Kautza, interim director of Madison College's Interest-Based Problem Solving (IBPS), present for the plaintiffs were Nancy Aten, Carri Catarozoli Andersson, Kathleen Finnerty and Christie Weber as well as attorneys Mary Beth Peranteau and Sarah Geers. The City was represented by Council members Laurel Hauser and David Ward, City Attorney Randy Nesbitt and City Administrator Josh Van Lieshout, and accompanied by Attorney John Greene).
 

07 June 2017 City Behaving Badly Again

(1) Six days prior to our first settlement meeting (11am - 5pm Monday June 12 in Madison), one of the City's delegation, David Ward, passed a resolution 4-3 at City Council to ask the State Legislature (Rep. Kitchens / Sen. Lasee) to reverse the Court ruling and draw an Ordinary High Water Mark (OHWM) for Parcel 92 that would convert public trust lands entirely to private development - contrary to all evidence, facts and law. This unilateral action was taken six days before the Plaintiffs and the City Council are scheduled to meet for a facilitated settlement discussion. Ugh. One citizen's plea to the Council yesterday. Help us Stop the Grab of Sturgeon Bay's Public Waterfront.

(2) Meanwhile, the June 2 meeting with facilitator, and with attorneys from both City and plaintiffs, was a productive meeting to set up the framework for settlement discussions. Plaintiffs proceed with hard work and best faith and principled basis - on to Madison on Monday.

18 May 2017 Meetings Scheduled

(1) City's attorneys Kent/Greene recommended a facilitator, Jeremy Kautza of Madison College IBPS.

(2) Kautza is meeting June 2nd with Kent/Greene and Friends' attorneys in Madison to discuss structure of settlement meetings.

(3) Kautza is not available May 31 or June 1. His first availability for all-day first settlement meeting is June 7, 12, or 14 in Madison. Friends are okay with any. City chose June 12 in Madison.

(4) Current planned attendance at first settlement meeting is from City: Ward, Hauser, VanLieshout, Nesbitt, plus Kent/Greene. From Friends: Aten, Andersson, Weber, Finnerty, plus Peranteau/Geers. And Kautza.

12 May 2017 Meetings Scheduled

(1) Friends have agreed to meet for the first of multiple settlement discussions with City (Hauser, Ward, Vanlieshout, Nesbitt) and attorneys on May 31st or June 1st in Madison, per the City's resolution passed May 2nd. We hope for a win-win resolution that honors public trust doctrine and its benefit to long-term economic sustainability in the city.
(2) Meanwhile, a placeholder date for the Public Hearing for the DNR's Declaratory Ruling Process for determining OHWM (Ordinary High Water Mark) is  August 3rd in Sturgeon Bay, with both daytime and early evening hours to accommodate public input on OHWM. Friends and City agreed to slightly delay this hearing in order give settlement discussions the best possible opportunity for success.

03 May 2017 Council Listens to Citizens

Glad to report pretty good news, Sturgeon Bay. At the Common Council yesterday, a substitute resolution by Catarozoli passed unanimously - creating the opportunity for Friends to meet with WDNR and City represented by Council members and Waterfront Redevelopment Authority members Hauser and Ward (not the Mayor), and also the overreach request for legislation was tabled indefinitely. We look forward to productive meetings with WDNR and Hauser/Ward and have hope for a win-win outcome.

30 April 2017 City Behaving Badly

On April 15, WDNR issued to the City a Preliminary OHWM Determination that is ludicrous. On April 18, WDNR formally agreed to Friends' petition for an open, transparent OHWM Declaratory Ruling process, setting a meeting for April 27 to discuss scheduling the hearing and details for public participation and expert witness testimony. On April 26, though, City filed an Appeal of Judge Huber's clear ruling that "all or most of Parcel 92" is in the Public Trust. This delayed discussions of the public hearing. Meantime, on April 28, City filed an agenda for the Tuesday, May 2 Council meeting - that is terrible. Items 10 and 11 combined seek to give the Mayor sole authority to effectively draw the ordinary high water mark where he wants it - he wants to exclude ALL OF PARCEL 92 - the big old granary dock - from Public Trust - in direct contradiction of the court's finding of facts - and then cooperation from the State Legislator to legislate that line. We will fight as hard as we can to stop this. Meantime, see at right, Why the WDNR Preliminary Determination is Very Wrong. Friends of the Sturgeon Bay Public Waterfront look forward to explaining the big old granary dock to WDNR in the public hearing that will be part of the Declaratory Ruling process, so they can get it right. Maybe we can just read the trial transcript out loud with exhibits. Meantime we must also fight the Appeal - with clear facts and law on our side.

For several alternative proposals made to City over two years, see West Waterfront Alternative Ideas.

08 March 2017 Progress on Court's Ruling

Today the judge's final ruling was signed. This makes clear the injunction on parcel 92 - that all or most of parcel 92, the historical granary dock, it is in the public trust. The injunction is subject to the normal DNR process of establishing the Ordinary High Water Mark (OHWM) and whether any portion of parcel 92 near Maple St is determined to be above OHWM.

Today also a Petition for Declaratory Ruling for normal OHWM determination on parcel 92 was delivered to the DNR. This is what the public have been asking for, for two years. The normal process should include a public hearing and opportunity for review. See the map at right showing parcel 92, along with the platted historical shorelines and the 1835 US government surveyed "meander line" approximation of shoreline using straight line segments.

10 February 2017 A Win for our Community

Fellow citizens, how wonderful it is to have protected public trust lands for the whole community and for future generations. City government, we hope to see you move forward, work with the recent judgment rather than against it, and be grateful for this protection of public lands along with us.

Facts and law were both so clear that the judge ruled yesterday immediately after closing arguments.

Written ruling to come in the next days. Meantime, this image explains: Parcel 92 was clearly all, or nearly all, artificially filled lakebed (the historical Teweles and Brandeis dock) held in the public trust and cannot be sold for private development.

See the trial decision explained.

But help us Stop the Grab of Sturgeon Bay (Feb 19).

Also see Maps are knowledge.

If you have 17 minutes, listen to Carri "give a recap post-trial and look ahead to what the decision could mean for Sturgeon Bay".

Read "Facts, Laws and Ostriches", March 15th

Letter to the Editor.

Read "The Unrealized Potential of Sturgeon Bay's West Side", February 17th Letter to the Editor

July 20 2015 WRA Meeting - Dan Collins comments
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To-scale model used during facilitated settlement discussions

Early years

2017 January 19 A Win-Win Vision

for Sturgeon Bay's Westside Waterfront

2017 January 23 Side-by-Side Comparison

of Friends' Win-Win plan with City's sent with utility bill

2017 January 25 Correcting the Advocate Story.

Advocate story today contains factual error in included map from Sturgeon Bay Community Development Office. See The only recorded Ordinary High Water Mark.

See also this drawing, sent to City in June 2015.

30-sec Radio - Friends of Sturgeon Bay Public Waterfront
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10-sec Radio - Friends of Sturgeon Bay Public Waterfront
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10-sec Radio - Friends of Sturgeon Bay Public Waterfront
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A few relevant open records, FYI

2016 October 31 News Release

Several announcements made at Friends' Fall Social

2016 October 27 Write to Your Legislator

Three simple steps and sample talking points for you to send an important email opposing flawed legislation.

2016 October 28 Slideshow

See historic to contemporary photos and maps

2016 October 25 Letter to the Editor

In opposition to flawed legislation that would give away public lands (long version).

2016 October 10 Press Release

Friends of Sturgeon Bay Public Waterfront Confident in Brief Filed in Support of Motion for Summary Judgment.

See Resources for more information.

2016 Fall - Alternate Proposal