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River Club owner, Mequon square off over meaning of debated easement

 One of several trespassing signs posted around the 42-acre lot in the Ville du Parc neighborhood.

One of several trespassing signs posted around the 42-acre lot in the Ville du Parc neighborhood. Photo By Michael Meidenbauer

Jan. 16, 2013

Mequon - River Club of Mequon owner Tom Weickardt has filed a lawsuit against Mequon, alleging the city needs to enforce trespassing on a 42-acre lot abutting the Milwaukee River and keep residents of the Ville du Parc neighborhood out.

The Dec. 4 suit petitions an Ozaukee County judge to compel the city to enforce trespassing and keep locals off the property. Weickardt's attorney argues that the open space agreement governing the lot, which has been subject to debate recently, is "unlike a true easement" and doesn't grant Ville du Parc residents the right to use the property, while also alleging the city hasn't enforced his ownership rights.

The city has since responded to Weickardt's suit, denying any duty to enforce trespassing on the lot on the grounds that no trespassing has yet occurred, that Weickardt's attorney incorrectly draws property rights from the open space easement, and that the easement doesn't create a duty to begin with.

The property in question, a 42-acre lot abutting the Milwaukee River, caused a stir last June when Weickardt presented plans for residential development and City Hall filled with opponents and supporters of the plan at a Committee of the Whole meeting. River Club representatives and nearly 80 residents spent the evening debating the scope and effect of the open space easements which were used to set aside open space for residents so that the original developer could increase housing density beyond what was allowed by the zoning code.

Homeowner group Friends of Ville du Parc argued then, as it does now, that the "aesthetic, recreational and cultural enjoyment" of the land permitted in the open space easement allows Ville du Parc residents the right to use the land, and effectively prohibits development.

"We were thrilled with the (city's) response (to Weickardt's suit)," said Friends of Ville du Parc President Ken Sosnowski. "There are so many little areas that are supposed to be protected, and we've counted on the city for 50 years to protect us."

A difference of opinion

City Attorney John DeStefanis argues in his response to the suit that, first and foremost, Weickardt's claim is based on hypothetical trespassing.

"There haven't been any trespasses that I'm aware of," said DeStefanis, adding that, in his opinion, Ville du Parc residents could use the property.

"If a resident decided he wanted to take a walk (through the lot) the city wouldn't necessarily dispatch police to remove him," he said.

DeStefanis' argument goes on to say that Weickardt is incorrectly basing his property rights off the one document.

"I don't think that their ownership rights derive from (the open space easement)," he said. "You can't cherry pick it. You can't read an individual provision."

Weickardt's attorney Christopher Hale bases his argument on a section of the original agreement which says "nothing herein shall be deemed to grant to any person … in the restricted open space … any easement for travel over … or any right in and to such lands."

"The open space easement is a restriction on the owner's use of the land," Hale said. "It does not grant residents the right to use and access the land."

Additionally, Hale argues that the city has a "non-discretionary" duty to enforce Weickardt's property rights.

Going forward

Both attorneys agree that the open space easements, in total a collection of documents pieced together as various developments sprouted up throughout the Ville du Parc neighborhood, are vague and tricky to interpret.

"This thing is poorly drafted," DeStefanis said. "One could argue either way."

To Sosnowski the city's response heralds an upholding of Ville du Parc residents' property rights, which he said could be in jeopardy in other areas if the judge rules in favor of Weickardt.

"We're worried about the precedent," Sosnowski said. "It sets a domino effect."

Meanwhile, River Club Community Relations representative Kevin Brandt is attempting to dispel Friend of Ville du Parc's vocal suspicions over further development, which he calls "misinformation" and "calculated rhetoric."

"The current 27 golf holes will never be developed," he wrote in recent letter to neighbors. "We cannot state this any more clearly or emphatically."

His letter criticizes those who "insist on fighting to undermine the success of the club," saying local property values, business owners, tax revenue and employees all suffer from such efforts.

"A successful club benefits everybody, not just a few, and we will continue to invest in the River Club of Mequon," wrote Brandt.

Nevertheless, if the River Club should someday seek to develop that 42-acre lot, the process would essentially reset to where it was last summer, said DeStefanis, and plans would have to go through the Planning Commission, Common Council, and potentially Ville du Parc residents.

"That has its own legal issues and questions," he said, adding, "depending on what happens in this lawsuit does not presuppose or set the stage for development."

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