When the cost of litigation is less than the cost of compliance with a law a rational business person will litigate rather than comply.
After losing its case in Court of Appeals, Marina Bay files with Wisconsin State Supreme Court. Marina Bay (MB) claims that its business depends directly on the capacity of its pier to accommodate rental boats and slips. Reducing the length of the pier would cause approximately 40% of its gross revenue. In the City of Lake Geneva’s 15 year battle to get Marina Bay Boat Rentals, Inc. to comply with its 100 foot pier length ordinance the cost of compliance seems to be in MB’s favor thanks to a Stipulation and Order between Lake Geneva’s City Attorney and MB’s.
The City has the power to fine a violator up to $500/day for non-compliance and seek the removal of a violating structure. When this dispute started in 1997 and 2002 that is exactly what the city threatened to do to get the violator’s attention. But on 4.27.2009 Marina Bay filed a Temporary Restraining order in a separate case against the City of Lake Geneva Aldermen who voted to force them to comply with the ordnance. Only a month after the Restraining Order was filed and before the court ruled on the case a Stipulation and Order was agree to between the Attorneys that permitted MB to maintain its existing 154 foot pier and continue to operate its commercial recreational boat rental business. And prevented the City and “any of its representatives or enforcement agencies” from imposing”fines or forfeitures” on Marina Bay until “all appeal rights have been exhausted, the City ultimately prevails in obtaining a permanent injunction which requires Marina Bay to shorten its existing pier to 100 feet, Marina Bay shall forfeit the $10K, and the City may collect on the letter of credit regardless of whether or not citations are actually issued. At that point in time, the City may also begin to issue citations to Marina Bay for any alleged pier-head ordinance violations.”
4.27.2009 Marina Bay files motion for Temporary Restraining order.
6.02.2009 Stipulation and Order.
6.30.2009 motion to dismiss individual defendants.
8.3.2009 Court finds city officers are not proper parties to any of these cases and dismisses them from the action.
10.05.2009 Court dismisses as to individual Alderpersons, only City of Lake Geneva will remain as a defendant. In dispute as the language in the order from 8.3.2009.
11.06.2009 dismisses first three cause of action for declaratory judgment, breach of contract, and injunctive relieve as to individual Aldermen and consolidates this case with 97-CV-325 (goes back to 1997)
4.12.2010 Harbor Cove is added in as a party. The Johnson’s lease the riparian rights for their pier from Harbor Cove Association.
06.15.2011 Notice of Judgment in Circuit Court Judge Race
07.25.2012 Court of Appeals decision and order affirming.
08.24.2012 Files with Supreme Court of Wisconsin.
In the appeal to the Wisconsin Supreme Court, Terry Johnson, Pamela Johnson, and Marina Bay Boat Rentals, Inc. and Harbor Cove Condominium Association, Inc. bring forth some interesting arguments. We won’t bore you with the standard equal protection claims, but they do point out that “This case also involves the City giving a competitive advantage to a private business in competition with Marina Bay because the City rent the entire Gas Dock Pier to a private business.”
In 2012 the Republicans in Wisconsin gutted a number of environmental laws with Act 167. In the Johnson’s brief they state that:
The new law reads:
(b) In addition to the exemptions under sub. (1g), a riparian owner of a pier or wharf that was place on the bed of a navigable water on or before the effective date of this paragraph, is exempt from the permit requirements under this section unless any of the following applies:
1m The department notified the riparian owner before the effective date of this subdivision, that the pier or wharf is detrimental to the public interest.
2. The pier or wharf interferes with the riparian rights of other riparian owners.
In their appeal the Appellants (Marina Bay and Harbor Cove) fail to mention that they do not own the riparian rights in Baker Park where the pier is question is located, the City does.