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Judge sides with Weickardt in River Club suit

Residents aren't allowed into lot, judge says

A sign on the boundary of the 42-acre lot near the Milwaukee River warns against trespassing around the time River Club of Mequon owner Tom Weickardt filed his lawsuit against the city.

A sign on the boundary of the 42-acre lot near the Milwaukee River warns against trespassing around the time River Club of Mequon owner Tom Weickardt filed his lawsuit against the city. Photo By Michael Meidenbauer

Aug. 5, 2013

Mequon — Ozaukee County Circuit Court Judge Tom Wolfgram on July 26 sided with River Club of Mequon owner Tom Weickardt, saying a much-debated easement does not grant Deer Trail Estates residents the right to enter a 42-acre lot abutting the Milwaukee River, as neighbors claim.

The decision is a victory for the developer of the former Mequon Country Club, but it’s clear this battle is far from over. The city of Mequon, which is the defendant in the suit, as well as nine families who joined the suit in April, can appeal Wolfgram’s decision.

The ruling is connected to a series of debates, both in the Common Council chambers and in the courtroom, between Weickardt and residents of the Ville Du Parc neighborhood. After the easement, and residents, stood in the way of Weickardt developing the lot in 2012, his attorneys took the city to court. At first they argued that the city needs to cite neighbors for trespassing if they go on the lot, but later re-framed their argument to gain a ruling which interprets the easement in such a way that neighbors are prohibited entry.

Agreeing with Weickardt’s attorneys, Wolfgram zeroed in on a section of the easement which says the easement itself doesn’t grant neighbors “legal estate ... easement for travel over or license or right in and to such lands.”

“The analysis ends there if the language has only one reasonable interpretation and is, therefore, unambiguous,” Wolfgram wrote in a July 26 decision, adding that the specific wording wins out over contrary claims by the city and neighbors based on the “aesthetic” and “recreational” rights provided by the easement. “(Weickardt’s attorneys) are correct in that specific language in an easement essentially trumps general statements. That is the case here.”

Wolfgram also agreed that the easement can be modified if Weickardt and the Common Council can agree on changes.

“We believe that the language of the easement was straightforward and self-evident, but a vocal minority of residents argued otherwise,” said attorney Christopher T. Hale, representing Weickardt. “We’re pleased that the court vindicated Mr. Weickardt’s position.”

Hale said he is unaware of any potential easement changes at this time.

Decision raises concerns

Mayor Dan Abendroth said last week the decision flies in the face of the original intent of the easements, which he says was to allow neighbors access to the land.

“Going back to 1989, that’s always been the intent in Ville Du Parc, to preserve that open space for the residents,” Abendroth said.

In an interview last week, Deer Trail Estates residents Carol Hagemeier and Bob LaPerriere said Wolfgram’s decision needs to be looked at from three perspectives: first, that the ruling itself is one of many possible interpretations of the open space easements; second, that any change to the 42-acre lot could have adverse environmental effects, since the lot lies in a Milwaukee River floodplain and is a crucial recharging area for the river; and perhaps most importantly, that Wolfgram’s decision could set a precedent with the potential to keep Ville Du Parc homeowners off eight other open spaces throughout the neighborhood, all of which were set aside by similar easements dating back to the 1960s.

“It’s a ripple effect,” Hagemeier said. “There’s the potential for it to affect all these other areas.”

Appeal possible

The nine Deer Trail Estates families in the suit, and the city itself, can still file an appeal.

“The recent ruling prohibiting physical access onto the 42-acre site does not address development of the site, and the filings with the court concede that there is no dispute that the owner’s use of the entire 42-acre site is restricted by the Open Space Easement,” attorney Rob Holtz, who represents his and eight other Deer Trail Estates families in the suit, wrote in a statement Monday. “The (nine Deer Trail Estates) families are in the process of evaluating their options regarding whether to appeal the decision.”

Any appeal by the city would need to be initiated by the Common Council, DeStefanis said.

Abendroth expects the council to get an update on the suit at its Aug. 13 meeting, at which point aldermen could consider whether to file an appeal.

“That would have to be a council decision, but we would have to discuss that,” Abendroth said. “It would be new ground.”

More clarity

More than anything, City Attorney John DeStefanis said, Wolfgram’s ruling lends clarity and resolves the ambiguity stemming from the “poorly drafted” open-space easements.

“The worst problem a lawyer, or even a deliberative body like the council has, is uncertainty in a document,” DeStefanis said, “ ... In one respect, the city was just sort of standing off to the side of the developer (Weickardt) and the (nine Deer Trail Estates families in the suit).”

However, DeStefanis said, the ruling doesn’t really affect the fate of the 42-acre lot unless the Common Council and Weickardt can agree to amendments to the easement.

Contentious history

The easement itself was originally drafted as part of the Deer Trail Estates subdivision built in the late 1980s, and fits into a patchwork of similar easements governing other spaces in the Ville Du Parc area. In order to gain an exemption on lot-size requirements, the developer agreed to set aside the 42-acre lot via the open-space easement.

The 42-acre lot is a part of the property, then called the Mequon Country Club, that Weickardt bought in 2011. In September 2011, Weickardt submitted plans to develop the lot into a 19-lot subdivision with a 12-acre park for residents. Discovery of the easement by city employees put the brakes on Weickardt’s plan in February 2012.

Since then, the Common Council has heard from Ville Du Parc residents on both sides of the issue, but hasn’t taken any formal action.

In December, Weickardt filed the lawsuit against the city, claiming the city hasn’t enforced his rights against trespassing on the 42-acre lot. His attorneys later reframed their case, arguing that judge Wolfgram should issue a declaratory judgement that only gives Deer Trail Estates residents the right to enjoy the “scenic vista” of the lot.

At the same time, DeStefanis and Holtz have argued that the “aesthetic, recreational and cultural enjoyment” of the land permitted by the open-space easement allows Deer Trail Estates residents, and possibly even all Ville Du Parc homeowners, the right to use the land.

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