Milwaukee County considers bump in legal defense money for Couture land dispute (UPDATE)

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Milwaukee County is bracing itself for a possible lawsuit over land proposed for The Couture high rise in downtown Milwaukee.

Supervisors on Thursday increased the county’s legal budget to deal with land-use concerns surrounding the $150 million building proposed to replace the Downtown Transit Center in Milwaukee.

Julie Esch, the county’s interim economic development director, requested the increase of as much as $100,000 to pay Reinhart Boerner Van Deuren SC, Milwaukee. The county’s original budget of $40,000 has been used, according to a memo sent to the Milwaukee County Board of Supervisors, and the county expects to face challenges to gaining clear title to sell the land.

Preserve Our Parks, a nonprofit group, raised concerns that The Couture might be built on a filled-in lake bed. If so, that land would fall under the state’s Public Trust Doctrine. Land under the doctrine must be reserved for public use.

The Couture is expected to be a 44-story, mixed-use building with a hotel, apartments, retail space and parking. The Couture developer Rick Barrett said Thursday the supervisors’ commitment to fighting for his project just strengthens his resolve to get it done.

“Anything that’s worth a damn is hard to do, and this is absolutely along those lines,” he said. “I don’t go away easily.”

The Wisconsin Department of Natural Resources decided in September the transit center was not built on filled-in lake bed. However, Charlie Kamps, a Preserve Our Parks board member, has said the group is not convinced the entire site is outside the doctrine.

J. Bushnell Nielsen, an attorney with Reinhart who specializes in real estate title litigation, said Thursday he is 100 percent sure the transit center is not on filled-in lake bed.

The city of Milwaukee began filling in Lake Michigan to create a harbor and move the shoreline east into the lake after the Legislature gave its approval in 1881, Nielsen said. The Chicago Northwest Railroad owned land along the lakeshore at the time. When the city moved the shoreline, the railroad claimed that land as well, he said.

The city disputed that claim, Nielsen said. To settle the dispute, a line of demarcation was drawn between the railroad’s land to the west and land the city created by filling in the lake to the east. What now is the transit center, Nielsen said, always has been west of that line.

“I don’t think you need a lawsuit about the title to your real estate,” he said, “but there has been a lot of public comment about whether the county owns that property.”

Those comments could be enough to make a title company wary of insuring The Couture as a legal use for the land, Nielsen said, because it would constitute a known risk to the successful completion of the project.

“If that lawsuit is brought six months into construction, it’s a horrendous thing to happen,” Nielsen said. “I’ve handled lawsuits like that. It’s an impossible situation for the owner and lender.”

Reached Tuesday, Kamps would not confirm whether Preserve Our Parks has decided to legally challenge the status of that land.

The supervisors gave Reinhart attorneys approval to work with a title insurance company to dispel any remaining doubts about the legal uses of the land. If that cannot be done without a judge weighing in, Reinhart can seek a declaratory judgment.

But the dispute over the Public Trust Doctrine already has affected the project, Barrett said, by delaying construction. He said he intended to break ground by the end of 2013, but that start date is pegged for the first half of 2014.

He said he expects The Couture to take 26 months to build.

“If it wasn’t a fundamentally sound project,” Barrett said, “I would say that I’d be more apt to give in and not persevere.”

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