Lawsuit: Planned apartment building along St. Croix River is too tall for protected river

A legal skirmish over a proposed building in Osceola, Wis., is shaping up to be a test of the 55-year-old Wild and Scenic Rivers Act, the federal legislation co-written by Walter Mondale that designated the St. Croix and Namekagon rivers as part of the National Park System.

At issue: whether leaders in the small Wisconsin town moved too quickly to approve the development plans for an 102-unit apartment complex — and whether anyone passing by on the St. Croix River would be able to see it from the water.

The apartment building, slated to rise on the site of a shuttered hospital, would be visible from the river, say opponents, a distinction that would make it illegal under the rules set down by the Rivers Act.

In a lawsuit filed in Polk County Circuit Court, the nonprofit St. Croix Scenic Coalition and several neighbors of the proposed building say Village of Osceola officials "acted hastily, arbitrarily, unreasonably, and against substantial public interest" when they signed off on the building. Osceola is a village of about 2,800 residents on the Wisconsin side of the St. Croix River about an hour from the Twin Cities.

The suit filed by James R. Johnson, an attorney with the firm Lommen Abdo, names the Village of Osceola and its Board of Trustees as defendants; a scheduling hearing is scheduled for next week.

The plaintiffs argue that the building's river-facing wall would stand 51 feet, 3 inches high, enough to make it "visually conspicuous" from the river's center.

The Wisconsin Department of Natural Resources, the National Park Service and neighbors of the project raised concerns to village officials about the building's height and potential conflicts with the Wild and Scenic Rivers Act, the suit states.

A drone video shot by the developer, Gaughan Companies of Forest Lake, as part of its application was intended to show tree heights on the property; the suit's plaintiffs say the drone video also showed how the building's occupants would have clear river views. "Images pulled frame by frame from the Gaughan drone video show, with certainty, that the building would be 'visually conspicuous' from the St. Croix National Scenic Riverway at a range of heights between 41 feet and 51 feet," the suit states.

Some of the village trustees who approved the project said during public meetings that they saw proof in the drone video that the building wouldn't be visible from the river.

The developer said the building would stand 44 feet, 6.75 inches tall, just under the 45-foot height limit approved by village officials.

The lawsuit argues that the developer's measurement is faulty.

A call to Gaughan Companies for comment was not returned.

The Wild and Scenic Rivers Act of 1968 pertains to a small percentage of U.S. rivers, saying those with "outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values" should be preserved in a free-flowing condition. The areas that have qualified make up some 12,700 miles of river, less than 0.5% of the nation's riverways.

The ideas put forth by the Rivers Act are followed near Osceola thanks to a state regulation, N.R. 118, that enshrines river protections including specific building heights and setback requirements for the Lower St. Croix National Scenic Riverway; the Village of Osceola passed three conditional use permits this summer to allow the Gaughan proposal to skirt those standards.

Public meetings on the plan held this year sometimes drew standing room only crowds, and local opposition has divided neighbors over questions of development and the future of Osceola.

In the past week, village board president Deb Rose resigned; she didn't mention the outcry over the Gaughan proposal, but said in a note that the job had begun to interfere with her private life.

"The situation in Osceola, nobody supports keeping that derelict hospital there; everyone supports the need for additional housing in Osceola," said Peter Gove, the former commissioner of the Minnesota Pollution Control Agency, a longtime river steward and the owner of a cabin along the St. Croix River near Osceola. "The people I'm aligned with say there's no need to put a 100-unit, four-story apartment smack dab on the river."

The true draw of such a building for tenants isn't just the housing, but the undisturbed river views that such a building would offer, he said.

"If you canoe or kayak from Taylors falls to Osceola, which is the most traveled segment, and you're on the river and you're looking up at the bluffs, you rarely see anything in that stretch," said Gove.

It's not only in Osceola. A project in Hudson, Wis., has raised similar concerns as landowner Ron Gagnon seeks to build a four-story mixed-use building across the street from the city's Lakefront Park and the St. Croix River. The Wisconsin Department of Natural Resources has opposed it, raising concerns about harm to the public's interest. The builder won several variances from Hudson officials, including one to build 12 feet higher than the 45-foot-height restriction spelled out in the state regulationthat enacts the Rivers Act's protections.

"A shorter, compliant building … would reasonably be less visible from the river and block less views to the river," wrote DNR shoreland program manager Mike Wenholz in a letter that noted the city's obligations to the Rivers Act. The project has also drawn a lawsuit filed in St. Croix County Circuit Court by the Wild Rivers Conservancy and several others, including a Hudson bar that would see its river views diminished by the project.

In a response filed this week, the city of Hudson largely denied the suit's allegations.

In the years since the Rivers Act was made law, the National Park Service bought scenic easements from private landowners along the river to protect the view. The easements paid the landowners to not develop their land. The result today is that for long stretches of the St. Croix River, visitors see a riverway that looks much the way it has since before Osceola was settled in the 1840s.

The National Park Service today has some 879 scenic easements along the river covering about 25,000 acres, according to figures provided by Laura Hojem, the lands program manager for the St. Croix National Scenic Riverway. The St. Croix scenic easements are a substantial chunk — almost one-fifth — of all scenic easements the National Park Service holds across the country.

It wasn't cheap to do: The cost to the National Park Service between 1968 and 2008 had run to some $8.6 million, according to Gove, who noted that accounting for inflation would make the investment much more in today's dollars.

But it's that undeveloped view that draws developers, too, said Gove. If developers are looking for pristine river views to market properties, the St. Croix stands out.

"You bet it's pristine," said Gove.