Couture's Fate May Be In Public Trust's Hands

Jul 26, 2012

44-story high rise's proposed foundation is under debate.
Credit Susan Bence

The Milwaukee County Board could advance talks Thursday about replacing the downtown transit center with a 44-story hotel and apartment complex.

The property is located just steps from Discovery World and Lake Michigan.

A local developer is interested in building a high rise there and a number of local leaders are onboard.

However, a parks and public land preservation group questions whether the plot is off-limits to private development because of a clause in Wisconsin’s Constitution.

WUWM Environmental Reporter Susan Bence looks into the state’s “public trust doctrine."

Melissa Scanlan describes herself as a bit of a wonk when it comes to the public trust doctrine.

She recently penned a lengthy study on the subject and is the water law and policy scholar for both the UWM School of Freshwater Sciences and UW Law School.

Scanlan calls the doctrine, pivotal.

“The public trust doctrine was incorporated into state law immediately upon Wisconsin’s admission into the union and it basically holds that all of the navigable waters of the state are held by the state government in trust for the use and enjoyment of the public. That concept dates back to English common law and even earlier than that – Roman natural law from the 4th century,” Scanlan says.

Yet, just because the concept is ancient, does not make it easy to uphold when philosophical and political views collide.

An advocacy group called Preserve Our Parks has raised the possibility that the Milwaukee plot eyed for development was once Lake Michigan, but filled in more than a century ago.

According to Scanlan, lake bed development also falls under the scrutiny of the public trust doctrine.

“If this was formerly lake bed and the legislature granted that it be filled, there is a lake bed grant. Typically the lake bed grants are to be used for public parks and beaches; amenities for the public that will aid in some way aid in navigation – like a harbor - or in the public’s recreational enjoyment of waters,” Scanlan says.

The proposed high rise near Lake Michigan would be a privately owned, commercial venture.

Still, the water policy scholar does not believe communities should approach the issue with a cookie cutter mentality.

She recommends considering the merits of each lakefront or lake bed plan and, in this case, noting the pattern Milwaukee has established along the downtown lakefront.

“We’ve got have The Art Museum and Discovery World and Summerfest grounds and the War Memorial; those are all examples of public buildings that are on areas that used to be Lake Michigan, now are filled parts of the lake bed,” Scanlan says.

While Scanlan views the doctrine as vital to maintaining public access and water quality, she fears opposition building in this case, because the transit center is located across the street.

“What’s difficult about this transit center issue is that it is so removed from the lake that I think that just associating the public trust doctrine with it is confusing for people and it undermines in some ways the importance of this doctrine, because a lot of people will think this is a very extreme application of it; which would overall undermine the doctrine,” Scanlan says.

William Lynch does not want the state to budge. He is a board member of Preserve Our Parks – the group raising a red flag over the transit site.

Lynch fears giving up a piece of protected land puts other parcels at risk.

“You set a precedent that would possibly be applied to commercial development elsewhere on bodies of water where the public trust is required to be adhered to,” Lynch says.

Lynch claims there is plenty of room to both protect public access to Lake Michigan and encourage downtown development.

“In fact there is land just to the west of the transit center site. So I think the community should come together and see if we can use the transit center site as a green gateway and a true asset for access to the lakefront AND encourage downtown development; high rise or not as the needs dictate,” Lynch says.

Milwaukee will not reach a decision overnight on how to use the 2.2 acres on the corner of Clybourn and Lincoln Memorial Drive.

The Department of Natural Resources has work to do.

It is the trustee of all the state’s waters and therefore charged with sorting out the filled lake bed issue.

According to a DNR spokesperson, the agency is reviewing the facts.