Case contesting Minocqua’s regulation of riparian rights moves slowly

A long-running dispute between riparian property owners and the town of Minocqua has now become a long-running lawsuit between the parties, with no trial date yet set more than a year-and-a-half after the complaint was filed in February 2023.

A status conference in the case, in which Minocqua resident Richard and Teresa Hahn have sued the town over pier placement, the town’s claim of riparian rights, and its pier ordinance, is now set for Sept. 16 with attorneys appearing via Zoom.

Since the filing, trial dates have come and gone (a trial could be set anew on Sept. 16) and so have judges. As of April 23, attorneys were still conducting discovery in the case and preparing summary judgment motions, according to court records.

When the complaint was filed in February 2023, the assignment went to appointed judge Mary Roth Burns, who was defeated the first time out the gate facing voters that spring. The case had already been transferred to judge Michael Bloom, who has since retired. As of press time, judge Mary Sowinski, who won the election to replace Bloom, will hear the case.

A jury trial was originally scheduled set to begin March 4, 2024. In September 2023, that date was changed to June 17, 2024, but this past March that date too was removed from the docket.

The case grew out of a years-long dispute between riparian property owners along Chicago and Park avenues and the town. In February 2022, the Hahns filed the complaint alleging that the town does not have the authority to regulate the riparian rights of lands along a portion of East Chicago Avenue between the avenue and Lake Minocqua, and that a town ordinance to regulate the placement of certain piers is arbitrary, unreasonable, and unconstitutional, among other things.

The Hahns are the riparian owners of an affected Chicago Avenue property and they claim deeded riparian rights, which include the right to place a pier. However, because the public road right-of-way crosses their property and runs to the water’s edge, the town also claims the riparian rights.

In their complaint, the Hahns also are challenging the town’s ownership of a parcel adjacent to their own, and are seeking to have the town’s boat launch and piers placed on or adjacent to that parcel declared unlawful. The town counters that those facilities place the Hahns in a “public facility zone” that forecloses their ability to place a pier adjacent to the parcel.

The dispute erupted after the Hahns purchased their East Chicago Avenue property on May 29, 2020, and built a single-section pier that extended into the navigable waters of Lake Minocqua.

While the pier was placed adjacent to the parcel where the town has its boat launch and piers, it did not unlawfully or otherwise obstruct the public’s access to navigable waters, the lawsuit asserts.

As for the parcel adjacent to the Hahns, the town is listed in county records as the property owner, but the Hahns submit the town does not own it and they want the court not only to declare the boat launch and piers to be unlawfully placed but to issue an injunction preventing the town from expanding the boat launch and piers.

As for the dispute about who controls the riparian rights on the Hahns’ property, for years the town insisted it owned the roadway and strip of land between it and the lake, not only on the Hahns’ property but on certain similar properties, though more recently it has asserted that, ownership aside, it nonetheless controls the riparian rights of the water adjacent to the strip of land.

For their part, the Hahns maintain they own the land to the water and that the town merely maintains a road right-of-way parcel and does not own or control any riparian rights.

The letter

For a while, matters stood at a standstill, but things escalated in mid-May 2022, when Minocqua town chairman Mark Hartzheim sent a letter to the Hahns demanding that they remove the pier they had installed.

“It has come to the town’s attention that you have again installed a two-section pier into Lake Minocqua on East Park Avenue in close proximity to the public boat landing and public pier owned and maintained by the town,” Hartzheim wrote. “The pier was installed without the knowledge or consent of the town of Minocqua. The pier must be removed immediately.”

Hartzheim contended in the letter that the Hahns also installed a pier the previous year in the same general location near the public boat landing and public pier, also without knowledge or consent of the town, and the town also told them it had to be removed.

In the letter, Hartzheim cited safety concerns because of the pier’s close proximity to town piers, as well as “other reasons.”

“The reason for removal at that time is the same as the reason for removal at this time: the pier presents a conflict and safety hazard for public users of the boat landing and public pier system owned, maintained and controlled by the town,” he wrote. “The town cannot allow such a conflict and hazard, and this position was made very clear to you the last time you installed the pier.”

Hartzheim said there were other reasons the pier had to be removed, but he did not specify them. He ordered the pier removed by May 23, at which time he said town employees would again remove the pier and charge the cost of the removal to the Hahns.

As The Lakeland Times has previously reported, after the town sent the letter, Richard Hahn was confronted by Minocqua’s director of public works, Mark Pertile, who told him to remove the pier or town employees would. The town ultimately removed the pier, with Pertile telling Hahn at the time that the town owned the land and that safety was a concern.

The removal order had any number of errors, the complaint asserts.

“The removal order did not identify the statute, regulation, rule, or ordinance the Hahns’ placement of the pier purportedly violated, nor did the removal order provide the Hahns the opportunity to challenge the town’s decision,” the Hahns’ complaint states. “The removal order erroneously implied that the town maintained exclusive rights to regulate the placement of piers adjacent to the parcel.”

And that just wasn’t true, the attorneys argue in the complaint: “The town has no authority to regulate the placement of the pier adjacent to the property or the parcel,… the town has no authority to regulate the riparian rights of the land located within the [adjacent] parcel.” 

What’s more, the complaint asserts, the town did not issue a citation to the Hahns related to the Hahns’ allegedly unlawful placement of the pier in conjunction with the removal order, and that is contrary to the town of Minocqua’s general code of ordinances.

In a May 17, 2022, email response to the removal letter, Hahn’s attorney, Elizabeth Stephens, explained why that was a violation, pointing to the town’s code that states that violations of the town’s “ordinances, regulation[s] or order” must be enforced through the issuance of a citation. 

“No such citation has been issued to the Hahns in direct violation of the town’s own ordinances and the Hahns’ constitutional and statutory rights,” she wrote.

The whole removal letter added up to an illegal threat that violated the Hahns’ rights, Stephens concluded in the May 17, 2022, email response.

“Based on the foregoing, it is our conclusion that the town’s letter and threat to remove the pier is unlawful, non-compliant with local, state, and federal laws, regulations and rules and is violative of the Hahns’ rights under these laws, regulations, and rules as well as the United States and Wisconsin constitutions,” she wrote. “Moreover, as discussed, supra, the Hahns have a lawful right to place the pier pursuant to the conveyance of riparian and flowage rights associated with the property.”

The point of that May 17 response, the complaint explains, was to seek the town’s formal opinion and explanation as to the legal bases for the town’s issuance of the removal order, as well as to assert the Hahns’ lawful right to place the pier and to explain that the demands contained in the removal order were without legal authority.

However, the complaint asserts, the town never responded to the letter, and on May 23, 2022, the Hahns removed the pier under protest. But that wasn’t the extent of the controversy, the complaint continues. 

“On June 22, 2022, the town’s public works director informed the Hahns that the town planned to expand the facility [on the adjacent parcel],” the complaint states. “Upon information and belief, the town’s planned expansion of the facility will prevent the Hahns from placing the pier.”

In sum, the Hahns are contesting the town’s ownership of the parcel adjacent to their property and are seeking a declaration that the town does not have the legal or statutory right to control certain activities on or appurtenant to the parcel. Given the challenge to the town’s ownership of the parcel, they are asking for a declaration that boat ramp and piers placed by the town are unlawfully placed. 

They also contest any claim that the town owns East Chicago Avenue between Menominee Street and Hassler Drive/St. Germain Street and thus does not own or have the legal or statutory right to control certain activities on or appurtenant to that location, and they similarly seek a declaration that the town does not have any legal authority to regulate the riparian rights of those lands.

Accordingly, the Hahns are seeking both a temporary and permanent injunction that would prohibit the town from preventing the Hahns from placing the pier.

The ordinance

The other major challenge by the Hahns is to a Minocqua ordinance that regulates pier placement. Specifically, according to the complaint, the town passed the ordinance to “regulate the placement of piers and related structures in or extending from town rights-of-way and to promote the safe and orderly use of the town’s exclusive riparian zone that extends into the Lake along East Park Avenue, West Park Avenue, and East Chicago Avenue.”

According to the complaint, the introduced ordinance was to develop “a licensing scheme” that owners along East Park Avenue, West Park Avenue, and East Chicago Avenue — including the Hahns — had to comply with to place a pier adjacent to their property or the parcel. The complaint asserts that those owners have the legal right to place the pier without any license or permit.

“The introduced ordinance, without lawful authority, sought to prohibit the placement of piers by riparians in ‘public safety zones,’ a term not defined by the introduced ordinance,” the complaint states. “The ‘public safety zone’ exclusion contained in the introduced ordinance would have prohibited the Hahns from obtaining a license to place a pier adjacent to the property consistent with their use and enjoyment of the property and their rights.”

On April 22, 2022, the complaint states, the Hahns, through their legal counsel, submitted written comments to the town asserting the legal invalidity of the introduced ordinance.

“The Hahns’ comments asserted that the introduced ordinance was facially invalid and/or legally deficient for reasons which included, but were not limited to: a) the town’s incorrect assertion that it maintained any riparian rights with respect to the parcel; b) the town’s failure to establish its lawful ownership of the parcel, which is adjacent to the property and the pier; c) the town’s incorrect assertion that its right-of-way was adjacent to the property or the parcel, or that it extends to the lake; d) the Town’s invalid legal theory related to its authority to regulate or license structures (including piers) placed adjacent to, but not on, town rights-of-way, as well as adjacent to the parcel; e) the town’s arbitrary and unreasonable establishment of public safety zones as a means to preclude the erection of piers by certain owners; and f) the introduced ordinance’s constitutional and statutory invalidity,” the complaint states.

The town did not respond to the comments, the complaint asserts.

As the ordinance went through the process, the town board amended it to permit the board’s establishment of “public facility zones” rather than “public safety zones,” the complaint observes, but did not provide the bases upon which the board was permitted to establish “public facility zones.”

On May 17, 2022, the town adopted the introduced ordinance as amended.

The sin of omission

The adopted ordinance does not apply to all property owners in Minocqua, the complaint observes, and on or about June 15, 2022, the town developed a list of properties along East Park Avenue, West Park Avenue, and East Chicago Avenue that would potentially be sent licensing applications for placing piers under the terms of the ordinance. The list included the Hahns’ property.

However, in June, the complaint asserts, the town mailed licensing applications for the placement of piers to the same list of properties but excluded the Hahns’ property without explanation.

According to the complaint, the licensing application requires property owners along East Park Avenue, West Park Avenue, and East Chicago Avenue to certify that the receipt of the license was voluntary and any actions taken under the license were at their own risk. The certification also relieved the town of any claims, injuries, or damages relating to the license due to negligence, and the property owner agreed to hold the town harmless for any claims, injuries, or damages relating to the license or arising out of its use.

The Hahns subsequently contacted the town clerk for an explanation about why they were not mailed an application, the complaint states.

“The town clerk explained the town board unilaterally excluded the property because of its proximity to a ‘public facility zone,’ the functional equivalent of a ‘public safety zone,’ as set forth in the adopted ordinance,” the complaint states.

The Hahns then requested information from the clerk related to the bases for the development and establishment of the public facility zone, including how the ‘public facility zone’ located adjacent to their property and to the adjacent parcel was established.

“The town clerk explained only that the town board developed the ‘public facility zone’ in question, but refused to provide further explanation related to the bases upon which the ‘public facility zone’ was established or why the Hahns were not sent a licensing application for the placement of a pier adjacent to the property and/or the parcel,” the complaint states. “Despite additional attempts by the Hahns to ascertain the bases for the development of the proposed ‘public facility zone,’ and the reason the property was included in ‘public facility zone,’ the town refused to provide further explanation.”

The attorneys laid out multiple reasons in the complaint why they believe the ordinance is invalid.

For one thing, the complaint states, the town does not have the authority to regulate the placement of piers pursuant to the adopted ordinance. On the other hand, the complaint asserts,  the Hahns are permitted to place a pier adjacent to their property and/or the adjacent parcel consistent with their riparian rights and, as such, they allege that the town has interfered with the Hahns’ property interests and with their use and enjoyment of the property.

Then, too, the complaint asserts, the adopted ordinance does not equitably apply to all similarly situated owners of property within the town, the town’s establishment of “public facility zones” is unexplained and is arbitrary and unreasonable, and the ordinance seeks to impose restrictions on citizens and landowners in excess of the town’s lawful authority.

What’s more, the complaint contends, the town has no authority to place the boat ramp and piers on and adjacent to the adjacent parcel because it does not own that parcel, while the adopted ordinance unlawfully excludes the Hahns from placing a pier adjacent to their property and/or the adjacent parcel.

“The Adopted Ordinance arbitrarily, unreasonably, and without authority restricts the placement of piers by owners along the lake,” the complaint asserts. “The town has no legal basis or authority to regulate the riparian rights of the lands between East Chicago Avenue and the Lake between Menomonee Street and Hassler Drive/St. Germain Street.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.