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Open-space easement puts brakes on subdivision plan

Neighboring subdivision owners have agreement protecting land

Feb. 15, 2012

Mequon - An open-space easement discovered by city staff after the Plan Commission recommended approval of a zoning change may have stopped the development of a 19-lot conservation subdivision on Freistadt Road. The final decision on zoning will likely come in April at a Common Council meeting.

In September 2011 David Leszczynski presented a proposal to the commission for the subdivision on 42 acres of land south of Freistadt Road on the Milwaukee River. The site includes flood plain along Milwaukee River and is east of Oak Shore Lane. The concept plan included two stormwater detention ponds and a 12-acre park for residents.

The commission supported the concept and sent it along to the Common Council for a decision on the requested zoning change.

The council, however, never saw the plan because of the discovery of the open-space easement.

Neighbors in the Deer Trail Estates subdivision north of Freistadt Road opposed the proposal in September and continued to oppose it on Monday night when the Plan Commission considered an amended request from Leszczynski that would allow the city to alter the open-space easement.

The neighbors previously stated opposition included the size of the lots in the subdivision, its proximity to the river, the possibility of additional boats on the river and the development of open space that is an environmental corridor.

The resurrected easement is listed in the titles of property in the Deer Trail Estates subdivision, and those property owners believe they have a guarantee that the 42-acre site would remain open and undeveloped, except as a golf course, according to the agreement between the city and the original developer.

Varying views on agreement

City Attorney John DeStefanis said the terms of the open-space agreement give the city the option of altering it. Leszczynski wants that change along with planned unit development zoning that would allow the sale of lots of varying sizes. Lot sizes would range from half an acre to more than five acres but would have an overall average of one acre.

Numerous property owners in Deer Trail Estates addressed the commission.

"When you purchase property with a right to use open space, it is clearly part of what you are buying," John Miller said.

Patrick Marchese, another Deer Trail owner and also an Ozaukee County supervisor, urged the commission to respect the open-space easement. In his opinion, the agreement is in perpetuity, but DeStafanis said he does not believe that is true.

Cheryl Nenn of Milwaukee Riverkeeper said there are strong arguments against building housing on the site, including the protection of the environmental corridor, the protection of water quality and the land's role in alleviating flooding.

"I am concerned this will be a very bad precedent with regard to other open-space easements in the city," she said.

Leszczynski said most of the lots in the proposed subdivision have higher elevations than the land in Deer Trail Estates.

"We are doing core samples," he said. "We are finding the water table is about 11 feet below where we want to build houses."

Leszczynski said he is offering the use of 100 acres along the river for neighbors' use in addition to the 12-acre park proposed as part of the subdivision.

Vision was for open space

Alderman Dan Abendroth, who chaired the meeting in the absence of Mayor Curt Gielow, recalled the agreement between the city and the developer of Deer Trail Estates.

"I was part of that council in 1988," he said. "We didn't care if he built a golf course or not. We leveraged his desire to build one to get the open-space easement. It is a valuable component of that area."

The commission, by a 4-2 vote, recommended denying the request for rezoning and an amended open-space agreement. John Leszczynski, David's brother, is a member of the commission. He recused himself from the discussion and vote.

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