Long road to lake access resolution reaches an end in Muskego

Muskego - For 40-some years, Muskego has treated a Little Muskego Lake access at the end of Park Drive as a park - a place to launch canoes, picnic or swim - but technically, it's still a road.

That fact - while not undoing the turmoil and wasted dollars of one homeowner - will finally put to rest a controversy that spanned half a decade.

The city obtained a legal opinion concluding that Park Drive has remained a right of way all these years, not a park. As such, attorney Donald Molter Jr., who works for the firm that serves as the city's legal counsel, concluded Jan. 30 that the property owner must impacted by that interpration has a right to use it as a road.

Time and money lost

James Mortle, who lives beside the city's lake access 12, almost spent $21,000 to buy a chunk of that access so that he could rebuild his garage and still have his driveway go onto the stub end of Park Drive.

Mortle thought he needed the land because city officials had explained that the old street and the land around it is a park, so any new driveway would have to let out onto Lake Drive in front of his home.

Not only that, officials were not so sure that Mortle should be able to keep using his current driveway onto Park Drive without city permission - hence the request to buy part of the lake access.

Fortunately, the Park and Recreation Board wouldn't sell, so Mortle didn't spend $21,000 to buy the land that he technically doesn't need, after all.

But he did spend money for an appraisal and a survey for the access land and for an attorney.

Besides the money for services, Mortle lost time.

He originally came to city officials five years ago expressing a desire to raze his house and garage and rebuild. When he was told he couldn't have the driveway of the new garage let out onto Park Drive because it was a park, he withdrew. But he didn't drop the idea.

About a year ago, Mortle renewed his request.

This time, as a compromise, he asked to buy part of the lake access. When the parks board wouldn't sell, he asked for an easement to at least protect his current driveway access. That request - and possibly because his attorney Paul Piaskowski took a higher profile role in the matter - led to the parks board to seek a legal opinion to determine exactly where the city stood.

Rough road to legal review

Although that opinion held that Park Drive is still a right of way, Molter noted that the record is confusing and that he could see why the misunderstanding happened.

Two resolutions from 1969 refer to Park Drive as a public right of way dedicated to public use and said it should be designated as a parkway, Molter wrote his opinion. But the resolutions also give the Parks and Recreation Board authority over the property, he wrote.

"It turns out that he never would have had to spend a dime, if they had done due diligence," Piaskowski said.

That due diligence would have included the city asking its attorney for a legal opinion earlier - long before Mortle requested the easement, Piaskowski said, adding that his client's position that the land was right of way was made clear to city officials a year ago.

Said Mortle: "I can see making a mistake, but when we were so adamant, it would have been a good time to check."

Well over a year ago, Piaskowski said he remembers speaking with Anderson about the lake access. Piaskowski claims Anderson said his review of the city's 1969 and 1987 resolutions indicated that the access is clearly parkland.

Anderson denied making that statement because he doesn't have the expertise to research those kinds of questions. "That's not what I do," he said.

What Anderson does remember saying is that staff had already looked into the issue and concluded that it was parkland.

Further Anderson said, Mortle and his attorney had come to the city with a number of related issues a year or so ago, but he described the context as being casual conversation, not an actual request to examine whether the land was a park or a right of way.

A clearer understanding

In his view, the matter has been resolved to the benefit of both the homeowner and the city. Mortle keeps his access. Through all the inquiry into the property, the city now has re-established the exact dimensions of the lake access, ending any confusion about where the access ended and Mortle's property began.

In spring, the dividing line will be clear, through an agreement between the parks board and Mortle.

Ironically, Mortle has since bought a home across the lake, razed it and is building a new home. He said he bought the home intending to sell it. But now he hasn't decided whether he might like to move there, Mortle said.

"We don't know what we're going to do," he said.

After five years of frustration, Mortle reflected, "All that expense and heartache for nothing."

Mortle said last week that he hasn't decided whether to try to recoup his costs from the city.