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Supreme Court says MMSD needs to fix Deep Tunnel

MILWAUKEE -- The Milwaukee Metropolitan Sewerage District will have to fix its leaky Deep Tunnel but may not have to line it with concrete, the Supreme Court said in a split decision issued today.

Bostco LLC had sued MMSD, alleging that the Deep Tunnel drained groundwater and caused foundation problems at its downtown Milwaukee building. The court ordered that the case be returned to circuit court in Milwaukee for a hearing “to establish whether another method will abate the continuing private nuisance MMSD maintains, or whether lining the Deep Tunnel with concrete is required for abatement.”

MMSD said the concrete option would cost taxpayers tens of millions of dollars and shut down for a year the system designed to prevent the dumping of untreated sewage during heavy rains.

The court found that MMSD was not entitled to government immunity in this case: “Because MMSD’s maintenance of the continuing private nuisance is not a legislative, quasi-legislative, judicial or quasi-judicial function, MMSD is not entitled to immunity.”

Susan Anthony, director of legal services for MMSD, said the agency would work to follow the court's order.

“MMSD is pleased with a number of the Wisconsin Supreme Court’s favorable findings, most importantly the constitutionality of the statutory damage cap," she said. "We are beginning to evaluate possible options to implement the Court’s decision regarding abatement.”

The decision comes in complex case has lingered in the courts for more than a decade.

Bostco LLC, the corporate owner of the 100-year-old building that leases space to the Boston Store and a number of apartments in the heart of downtown Milwaukee, is owned by Wisconsin Energy Corp. The lawsuit was filed in 2003 and lists a number of other buildings that have been damaged but were not part of the lawsuit.

The high court decision lets stand a finding awarding Bostco $100,000 in damages.

Bostco alleged problems caused by the Deep Tunnel, a 32-foot diameter, 17-mile sewer that runs 300 feet below the ground about a block from its building at N. 4th St. and Wisconsin Ave. Like many older downtown buildings, the Bostco structure is supported by wood pilings because the land was swampy at the time of development. The groundwater protected the pilings from rot.

The Deep Tunnel, bored through the bedrock, opened in 1993, the cornerstone of a $3 billion public works project designed to reduce the amount of sewage dumped into local waterways during heavy storms. The number of overflows has been significantly reduced but there also have been a number of heavy rain events that resulted in sewage backing up into basements. The district blamed changing climate patterns and heavy rains.

The tunnel has natural fissures and an estimated 2.8 million gallons of water leaks in every day. The Department of Natural Resources initially said the tunnel should be completely lined with a foot of concrete but the sewerage district balked and only a portion is lined.

Bostco said that drained groundwater and caused the pilings to rot. The Milwaukee Metropolitan Sewerage District, owners of the tunnel, denied the claim, saying that the depletion of the groundwater was the result of the lowered level of Lake Michigan.

By the time the case went to trial in 2006, the district had paid more than $7 million to settle 20 smaller claims related to foundation problems caused by the tunnel construction. Affected buildings included the Bradley Center, the Milwaukee Theatre, The Shops at Grand Ave. and the Hyatt Regency

After a lengthy trial that featured a great deal of complex data, the jury returned an equally complex verdict: They found that the building sustained $9 million in damage and that MMSD was responsible for 70 percent of the damage, $6.3 million.

In post-trial motions, trial judge Jeffrey Kremers threw out the award, saying that MMSD had statutory immunity that limited the award to $100,000.

After Kremers became chief judge of Milwaukee County, the case was among those transferred to Judge Jean DiMotto. In other post-trial motions, she ruled that the district would have to line a portion of the tunnel near the Bostco building. That, according to district officials, would cost tens of millions of dollars and require the system to be shut down for a year.

Both sides appealed. The appellate court rejected MMSD’s argument that it was immune from liability for not installing the concrete lining.

The majority decision released Thursday was written by Justice Patience Roggensack. Justice David T. Prosser did not participate. Chief Justice Shirley Abrahamson wrote a dissent which Justice Ann Walsh Bradley concurred.

Read the decision: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=99636

-- By Marie Rohde
For WisBusiness.com


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