A Polk County circuit court judge has granted a request by Osceola citizens and river advocates for an injunction to prevent work on a proposed development as a legal challenge moves through the courts. The St. Croix Scenic Coalition and community residents are suing the village board over its approval of the Osceola Bluffs mixed-used building plans, which the plaintiffs say violated laws intended to protect the Wild and Scenic St. Croix River.

In requesting the injunction, St. Croix Scenic Coalition lawyers argued they had a reasonable expectation of prevailing in the court case, and thus work should not proceed until a judicial review is completed.

“Preservation of the status quo is in the best interests of all concerned until the Court can review the record and make a determination on the various issues in dispute as to the Village’s approval of the Project because this development will dramatically change the environmental and economic landscape and potentially impact hundreds of residents and businesses and thousands of visitors,” the plaintiffs’ lawyer, James Johnson of Hudson law firm Lommen Abdo, wrote.

In response, a lawyer representing the village of Osceola said an injunction was unwarranted for a number of reasons. Attorney Joseph Langl of Ratwik, Roszak & Maloney wrote that those reasons includes the fact that no construction could realistically be performed at the site before a full hearing on the lawsuit in late January.

“Petitioners do not point to any evidence that the development activities that could conceivably take place between now and January 2024 would destroy the natural, scenic, and historic qualities of the project site,” Langl wrote to the court. “They have not explained how the development activities would negatively affect those qualities. They have not outlined what specific damage, if any, would be caused to the project site. They have not identified specific tree removal that could take place, or bluff destruction that will inevitably occur.”

The village’s attorney also said an injunction would primarily harm Osceola because it will cut into the timeline for a deal the village struck with the developers for a tax incremental financing agreement. The agreement signed in 2021 would subsidize the development with tax breaks, but could leave the municipality on the hook for part of the scheme if delayed.

Having considered the arguments, Judge Daniel Tolan granted the request on Nov. 5, with trial in the case planned to begin January 24. The injunction prevents any excavation or construction, but does not restrict demolition of the existing structures at the site.

Height fight

The Osceola Bluffs development proposal has been in the works for about two years. It would see a four-story building constructed on the edge of the river bluff, at a site on the northern edge of the village’s historic downtown. It would include 99 apartments, two ground-level retail spaces, and underground and surface parking lots.

Since it was first proposed, St. Croix River advocates have said it would exceed the allowed height for buildings along the Wild and Scenic river, among other issues. After several contentious rounds of review, the village board approved the development on July 25, followed by lawsuit filed in August.

The crux of the height argument is that the developers used a lower elevation as a baseline than allowed. The law requires buildings along the river to be no taller than 45 feet, measured from the average elevation of the construction site. Plans submitted in May 2022 showed an average elevation of 803 to 804 feet, but the approved plans claimed the base elevation of 809.75 feet. This allowed the developer to claim the building is only 44 feet 6.75 inches tall — just under the legal limit.

“The site slopes dramatically toward the river, thus causing the height of the building facing the river to allegedly be 51 feet 3 inches at the northwestern corner,” the plaintiffs wrote. That would be well over the 45 foot restriction.

The village responded that the higher elevation used by the developers “had a rational basis.”

“The ground elevation set by the developers along the western portion of the structure was not set merely as a ploy to artificially increase the ground elevation for purposes of determining the height of the structure,” the village responded. “It was based in part on requirements in the building code regarding the height of stoops outside egress doors, and in part for design purposes given the surrounding topography and site plan elements.”

Visual violation

The height is part of the reason the plaintiffs say the proposed building violates legal requirements to be “visually inconspicuous” from the river, and that the builder only provided a modeled view of the bluffs from directly below the site, but not from even slightly upstream or downstream.

The plaintiff says they are not the only ones with concerns about the visual impact.

“Prior to the June 6, 2023 Planning Commission meeting, the Wisconsin DNR and the National Park Service submitted letters for review, which included concerns that the Project would not be ‘visually inconspicuous’ from both the northern and southern viewing direction,” their lawyer wrote.

The planning commission members also expressed concerns about the height at the same meeting, according to the plaintiffs. But the village council ultimately sided with the developers, an defended its review of the visual impact met legal standards.

“The definition of ‘visually inconspicuous’ does not require that a project not be seen at all from the river,” the village argues. “To the contrary, it considers the possibility that a structure may be visible from the river so long as it is ‘difficult to see, or not readily noticeable, in the summer months as viewed from at or near the mid-line of the Lower St. Croix River.’”

Ultimately, the plaintiffs say that they believe the village board’s approval of the project was premature, a decision made without adequate evidence to support it.

“While Petitioners do not oppose development, significant questions remain as to whether the developers have set forth adequate evidence of compliance with the requirements of NR 118 and the Code to justify the Board’s final approval,” they wrote.

Early next year, the court will consider these arguments in greater depth as a judge hears the full case. In the meantime, the property that has been vacant for 15 years will stay that way for a few more months.