Photo Credit: Virginia Small
A proposal to turn the Bradford Beach Bathhouse’s rooftop into a pricey restaurant has raised concerns and triggered public opposition. Among those voicing major concerns are officials from Wisconsin’s Department of Natural Resources (DNR) and the Lakefront Development Advisory Commission (LDAC).
A frequent response by Milwaukee County Parks officials has been that an existing contract gives that vendor wide-ranging rights within the privilege of operating on public land. They contend that this agreement, labeled a lease, allows the Chicago-based concessioner to “redevelop” the open-air space to suit its business goals—specifically as a sit-down bar and grille—as long as parks officials approve such plans.
Some statements by county officials seem to imply that The Dock’s contract, approved retroactively by the Milwaukee County Board of Supervisors in April 2019, supersedes the public’s right to be represented in decisions about redeveloping the public space. Despite such assertions, DNR officials say that the April 2019 contract, as written, “is not sufficient” in protecting the public’s rights, specifically as defined within the constitutionally-enshrined “public trust doctrine.” They also say that in addition to public-serving contractual language, county officials must choose to enforce protections with operations that are consistent with the public trust.
DNR officials began meeting with Milwaukee County Parks officials last December to discuss DNR concerns about public access and other issues regarding a proposal for what appeared to be a “destination restaurant.” Although food-and-beverage concessions are allowed on land protected by Wisconsin's public trust doctrine, destination restaurants are not.
DNR officials have said that the primary goal of their consultations is to help county officials understand their stewardship duties involving land and water meant to serve all Wisconsin residents. Land that includes Bradford Beach was originally granted to all Wisconsin residents on June 2, 1921, after an area of Lake Michigan was filled in. Originally held in trust by the state for the public's interest, it was later granted to Milwaukee County with the same responsibility. The grant stipulated, in perpetuity, that the land “shall not be leased or sold...nor used for any other purposes than as a public park and boulevard.”
“The Department takes this important responsibility seriously and must scrutinize any plans which may incorporate private use of lakebed areas,” said a March 3 letter from John Budzinski, the DNR Secretary’s Director for Southeast Wisconsin. The letter was sent to the Lakefront Development Advisory Commission regarding an application by the Dock Bradford, LLC, to open a bar and grille.
|
|
Public Access?
The letter also said, “At this time, DNR has concerns for how public access will be enforced. These concerns are based on social media posts touting the Dock as a destination restaurant, rather than an amenity to the public beach, and media accounts of vendor signs in 2020 indicating restricted access to tented areas and other seating. DNR’s concerns are consistent with long-standing public trust requirements and correspondence to Milwaukee County."
Following the most recent meeting between DNR and Milwaukee County Parks officials on March 16, Michael Thompson, director of DNR’s waterways bureau, said that the next step is for Milwaukee County Parks to present materials that will ensure “enforceable” operations that protect the public’s interests. Milwaukee County is the primary steward of this public-trust land and the local “enforcement authority” of the lakebed grant.
When asked what specifically that might entail, Thompson advised contacting Guy Smith, Milwaukee County Parks’ executive director. “The ball is in their court,” Thompson said. Queried about what DNR officials had requested as next steps, Smith responded through a spokesperson:
“Prior to the meeting with the DNR, the Dock altered their proposal for the rooftop operation. This altered proposal was provided to LDAC for the January 27 meeting. The revised proposal states ‘The 2nd Floor bar shall accommodate walk-up service as well as servicing patrons utilizing the 2nd floor seating. Beachgoers will be able to either sit down with their food/beverage or will be allowed to take their food and drink to the beach. Service is the same at the floor level service window and the satellite bars on the beach. Servers will be available for anyone wishing to utilize available seating. Furthermore, we are not taking dining reservations and tables will be open to the public and available on a first come basis.’ In addition, it states ‘There will be no access restrictions for ingress or egress at the facility. All staircases, thoroughfares and pavilions are open to the public.’
“The Dock’s revised proposal therefore, is to ‘serve the patrons and beach visitors of Bradford Beach,’ and not to be a ‘destination restaurant.’
“A contract amendment is being written to reflect the revised proposal, and should this proposal be approved by Milwaukee County Parks, the contract will be the ‘enforceable agreement’ required by LDAC. As you know, the Public Trust doctrine is an important tool for ensuring public access at the lakefront, which is why Milwaukee County Parks already included public access as a requirement in the Dock’s original lease contract, executed in 2019. Requirement for approval of any public events hosted by the Dock at Bradford Beach is also included in that original contract.”
Responding to a question about the time frame, the spokesperson added, “Currently, the City of Milwaukee Department of Neighborhood Services is doing an accessibility review, and a report on the physical structure is underway too, an update will be provided to the DNR once those reports are completed.” Kay Lutze, DNR Waterways Supervisor, said that DNR officials “will review the final contract upon submittal from Milwaukee County.” Another DNR official said that such a review should happen before final execution, not retroactively.
Many Concerns Not Yet Addressed
Responding to the parks director’s statement, Jim Goulee, president of Preserve Our Parks and a former longtime Milwaukee County Parks manager, said that changes in wording to the contract will not be enough to ensure public access. “The parks department will need to put up signs that make it absolutely clear to all visitors that all parts of the beach and pavilion are fully open for public use.” Goulee added, “Milwaukee County Parks’ enforcement of public access has been very spotty, even when infractions repeatedly have been brought to their attention.” DNR officials have also said that appropriate and visible signage must be installed.
Tony Wilkin Gibart, executive director of Midwest Environmental Advocates, said, “The DNR’s [March 3] letter and the LDAC report make clear that the Dock’s proposal and its previous practices of limiting access and marketing itself as a destination bar are not acceptable. In response to these serious concerns, the County should be focused on guaranteeing public access and promoting equity, not preserving the status quo.”
According to LDAC chair William Lynch, "”There are whole areas of the LDAC recommendations that were not mentioned” in the parks director’s statement. In addition to the necessity for public-serving signage, LDAC'’ support is also contingent upon creating a welcoming atmosphere for all people, addressing multiple equity issues, and spelling out requirements in which special events are allowed and conducted. (See sidebar on the LDAC report). Lynch said that, given the past restrictions of public access that Parks has allowed, it will be essential to know in advance who will enforce contractual requirements and how they will do so. “We should not be setting up a system where people would find it necessary to pursue expensive and difficult legal action just to ensure that the public's rights are protected."”
Other points of unanswered concern include how will contractual compliance be enforced and what specific remedies will follow non-compliance? Logistically and socially, how would the rooftop space function simultaneously as both a sit-down restaurant and a fully open public space. What cues, intentional or not, might indicate who "belongs" within the space and who does not?
Lynch said he hoped that the parks director’s statement was only a preliminary indication of what will be included within a “comprehensive” revised contract. The LDAC report, sent March 5 to Milwaukee County Executive David Crowley and Milwaukee County Board Chair Marcelia Nicholson, also urged them to ensure that the Dock’s revised contract be reviewed by the Milwaukee County Board. As elected representatives, Milwaukee County supervisors have the sworn responsibility, first and foremost, to protect the public's interests, including through oversight of park operations and contracts.
Upholding the Public Trust Doctrine
Milwaukee County's Corporation Counsel Margaret Daun has not responded to requests for clarification about the Dock’s contract. On March 22, Jeremy Lucas, director of administration and planning for Milwaukee County Parks, said that he was instead responding to the latest query to Daun about “the lease executed in File 19-343.” Lucas wrote, “Milwaukee County Parks has been in regular communication with the Wisconsin Department of Natural Resources. Guidance from the WDNR has not indicated that our existing agreements are out of compliance. Milwaukee County Parks agreements are not in perpetuity and have specific end dates."
That statement seems to contradict DNR’s calls for revisions to the Dock’s agreement to ensure “legally enforceable” compliance with the public trust doctrine. The fact that agreements have end dates does not determine whether such agreements, policies and operations in fact uphold the public trust doctrine. DNR officials have determined that additional contractual provisions ensuring the protection of the public trust are necessary in light of the proposed expansion of the concession.
If Milwaukee County Parks abdicates its stewardship role regarding the public trust doctrine, DNR has the authority to intervene. Specifically, Budzinski's March 3 letter states, “Under the Wisconsin constitution, Article IX, Section 1, the State of Wisconsin holds all navigable waters in trust for the people of the State of Wisconsin and the nation and has an affirmative obligation to ensure lakebed areas, including those that are filled pursuant to state authorization, are open and maintained for the public’s use consistent with the public trust requirements."
Lakefront Commission Weighs in on Bradford Beach Proposal
The Lakefront Development Advisory Commission met twice recently to review the application by the Dock Bradford LLC to redevelop the rooftop of the Bradford Beach Pavilion as a pricey bar and grille.
The LDAC’s report, signed by chair William Lynch on March 5, was addressed to Milwaukee County Board Chair Nicholson and County Executive Crowley. It said, “During its consideration of this matter the Commission received over 280 submissions of comments from the public, only one of which was in favor.” The commission’s report of its recommendations follows, published with minor editing:
“At its February 17, 2021, meeting the Lakefront Development Advisory Commission passed by a vote of 9 to 0 a resolution recommending approval of the proposal of Dock Bradford LLC for new development of the second floor of the Bradford Beach Pavilion with the following conditions: LDAC’s support is contingent on compliance with the changes in the proposal reflected in the clarification of plan as explained at the Feb. 17 meeting and on the following:
1. Legally enforceable agreement. The Commission’s support is conditioned on understandings and commitments for initial and future operations being memorialized in a legally enforceable agreement between Dock Bradford, LLC. and any of its successors and Milwaukee County. The DNR in a letter dated Mar. 3, 2021 has indicated it has concerns for how public access will be enforced and has made some specifications of what an enforceable agreement for the operation of the project must include.
2. Equitable future changes. LDAC will support future changes to the contract if they would increase public accessibility and constitute equitable and inclusive spaces racially, economically and geographically. In order to assure that public access and other goals of the project will be adhered to in the future, LDAC’s support is contingent on requiring that anytime there is a requested amendment to the existing agreement or contract and any time a substantial change to the operations is at issue, equity and inclusion principles must be adhered to. LDAC support is contingent on the agreement with the County having a requirement that an equity (minority) impact statement that measures what the impact will be on the various ethnic and racial communities in the region be prepared and that consideration of it be at the core of review before any proposed changes are made in operations.
3. Welcoming atmosphere and affordable prices. All people should feel they are welcome at Bradford Beach and are not overstepping their boundaries. The design and operation of the venue must be welcoming to all groups who have chosen to make use of Bradford Beach and Milwaukee’s lakefront for recreational purposes, and not designed to target a clientele of a specific age, race, or economic status. Because the cost of menu items made available might limit access, the Commission’s support is also contingent on requiring that the [vendor's] agreement...be modified to provide that the menu at all times include items that are widely affordable so that any member of the public could afford a meal, regardless of their economic status, at all locations at which food and drink are offered.
4. Access. LDAC’s support is also contingent on requiring that all the spaces made available for seating must be open to everyone and that all the seating at the beach, first-floor, and second-floor venues be available to patrons and non-patrons alike on a first-come basis. The existing lease does not allow closing any part of the premises from public access or the reservation of tables solely for paying patrons. As there is some evidence that these provisions were not always complied with, it is imperative that the County enforce them and that any new agreement specify that members of the public who are not customers and do not intend to become customers will not be asked or encouraged to leave the tables or seating, even if people who are not patrons occupy all of the seating provided. The agreement is also to provide that reservations will not be taken and, except for alcoholic beverages, those who are seated at any of the tables may provide their own food and drink. The DNR letter indicates that an enforceable agreement for the operation of the project must include clear language regarding signage and conduct of operations allowing full public access and require that social media and other advertising verbiage for The Dock be consistent with the lease agreement and operating plan in regard to this being a public space and not a destination restaurant.
5. Access by persons with disabilities. LDAC’s recommendation is contingent on meeting requirements for access by persons with disabilities as determined by the City of Milwaukee. At a minimum the agreement with the County should require that all menu and service options available on the second floor be accessible for persons with disabilities on the beach and/or the first floor.
6. Employment and hiring. In order to further equity and inclusion the agreement should also require that employees be paid a living wage and that the private vendor adhere to equitable and inclusive hiring and employment practices. LDAC recognizes that doing so might require higher prices for food and drink in order for the venture to be profitable.
7. Special events. The agreement requires that special events that reserve space will be limited to a handful a year and will require prior approval of Milwaukee County Parks. The DNR letter indicates that an enforceable agreement must include restrictions on special events to ensure limited interruptions of full public access.
8. DNR review of Public Trust compliance. LDAC’s recommendation is contingent upon the results of review by DNR. The DNR letter dated March 3, 2021 expresses concerns about compliance with public trust requirements...The project must comply with the requirements outlined in the DNR letter and any additional requirements it may specify. If the DNR determines the proposed operations do not comply with Public Trust requirements, LDAC recommends that project should be rejected.
9. Second-floor building capacity. LDAC conditions its recommendation on obtaining results from the structural study that the Parks department has requested that demonstrate load sufficiency, with the long view in mind.
10. Historic preservation review. LDAC’s recommendation is contingent on compliance with the requirements resulting from historic preservation review."
The LDAC report concluded with a request to Milwaukee County's executive and board chair to "refer this recommendation to those at the County considering whether or not to approve this proposal. In the past, proposals for new development of County property on the Lakefront have been presented to the County Parks, Energy & Environment Committee for its action and then to the County Board. Supervisor Wasserman reported to LDAC that the Dock’s contract with the County gives exclusive rights for the Parks Department to agree to a plan without further County Board action and that the County Board does not have the right to vote on the proposed changes. Please consider whether Board action might be appropriate in this case where County policy on public access and compliance with the legal requirements of the Public Trust Doctrine are at issue...
“Also, please note that the staff report to LDAC from the Parks Department includes that Milwaukee County’s Office of Persons with Disabilities has agreed that an analysis must be performed regarding ADA [the Americans with Disabilities Act]. No analysis from that Office was provided to LDAC. It is presumably pending.”
In a follow-up email, Lynch said that he thought it would also be beneficial if the County Board would reaffirm its policy “requiring that all projects and operations comply with the public trust obligations on County land subject to the public trust doctrine, not only on the Lakefront, but wherever it applies.”
