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Attorney: Whowells own the lakefront

Jensen critical of Gempeler's findings

November 10, 2010 | 09:18 AM
Fontana — After months of review, the Whowells still own the lakefront.

An independent attorney has determined that the Lake Street business owners have riparian rights to Geneva Lake, but that hasn't silenced a critic who has dismissed the findings.

In July, Madison-based attorney Hank Gempeler was hired by the Community Development Authority to investigate the issue.

"While it's possible courts could arrive at differing conclusions, I believe the weight of the relevant documents lead to the conclusion that the parcels run to the lake shore and as a result, the riparian rights are held by the individual property owners," Gempeler wrote in his report.

For years questions have been raised on whether the owners of Chuck's Lake Shore Inn and Gordy's have the riparian rights to Geneva Lake. Chuck's is owned by Carol and Jamie Whowell and Tom Whowell is one of the owners of Gordy's.

Bruce Jensen, who has questioned the lakefront ownership for years, said the report is filled with inaccuracies.

Gempeler's report was released to CDA members, village trustees and other interested parties Tuesday morning. Gempeler is scheduled to present his findings to both the CDA and Village Board during a special session meeting Nov. 10 at 6 p.m.

Tom Whowell said he was happy with the findings, but remains disappointed that the CDA investigated the issue.

"We are part of the TIF district, the CDA should be defending us," Whowell said.

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Tom Whowell has previously criticized the CDA's handling of the investigation describing it as "inept" and "disgraceful."

"You and your committee should be embarrassed to sit in your chairs," Whowell wrote to the committee in a Sept. 20 letter with the subject line "Conduct Unbecoming."

Carol and Jamie Whowell could not be reached for comment by the Regional News deadline.

The investigation of lakefront ownership began when Fontana resident Lou Loenneke wrote a five-paragraph letter to the village questioning the ownership.

Loenneke wrote that he reviewed information that has been collected by Village Attorney Dale Thorpe and that he has "an even stronger feeling that the village does own the rights to the lakefront."

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On Tuesday morning, Loenneke said he was "disappointed by the report for village residents and property owners." However, he said he will have some questions for Gemepler during the Wednesday meeting.

"I'm curious how Gempeler discounted the documentation that we supplied that is was a platted road," Loenneke said. "Secondly, how did he discount that if it is unclear what size the road is, that it is four rods wide, which would be 66 feet?"

In Gempeler's report, he wrote there is no evidence the road was dedicated before or after the 1890 and 1891 plats.

To prepare the report, Gempeler met with Jensen and Loenneke and reviewed documents the two obtained.

"Jensen and the Jensen documents raise interesting questions. However, most of the documents submitted by Jensen were not of record and consisted of copies of assessors plats, transportation certificates, photos, rendering, maps and other anecdotal information which, while of interest, are not determinative of whether the property owners hold the riparian rights of the respective property," the report states.

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However, Jensen said he provided recorded documents from the Wisconsin Historical Society. He also said he brought other original documents to Gempeler.

"I brought those to Gempeler's office and he did have recorded certificate plats for the road," Jensen said.

What's next?

Gempeler provided the village with several options for moving this issue forward, including doing nothing.

"The village is under no obligation to take further action with respect to these questions," he wrote.

He also wrote the board could approve and record and assessor's plat confirming the existing road and property rights.

Another option for the village is to seek a judicial determination to who owns the riparian rights.

"If the action is initiated by the village, it will require that the village take some position to assert the village's claim of riparian rights and perhaps locate the public right of way," the report states. "Such an action would be time-consuming and, if brought by the village, an expenditure of considerable funds."

Residents also could commence action against the village for seeking "assumed riparian rights." They also could take action against the property owners for "impermissibly assuming public rights," Gempeler stated.

The issue has been raised numerous times and Whowell wants the Village Board to close the door on it once and for all, "So my kids and my grandkids don't have to talk to a reporter 10 years from now to explain why we own the lakefront," Tom Whowell said.

Loenneke said it isn't up to him what happens next.

"I think that is up to village trustees who have been elected to use their judgement to make that decision," Loenneke said.

Jensen wants the Village Board to seek a declaratory judgement, but doesn't expect that will happen.

"I think they are going to try to ram this through as an assessor's plat," he said.

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