Why Sue Instead of Completing the Environmental Review?
- admin0129213
- 23 hours ago
- 5 min read
This post is part of a 3 part series, see the other two posts here:
One of the more puzzling aspects of the Watten Ponds dispute is the developer’s decision to file a writ of certiorari opposing the Council’s requirement of an Environmental Assessment Worksheet (EAW) rather than simply completing the EAW and getting on with life.
An EAW takes time and money—but it’s almost certainly cheaper and faster than going to court. So why choose the longer, more expensive, and more uncertain path – a path that very well might end with the developer having to do the EAW anyway (see our first two posts - yes, if the court supports the City, as is likely, then the developer ends up doing BOTH the court case AND the EAW)?
We haven’t talked to the developer and don’t have any information on his motives or thoughts, but residents have been asking that question, and a number of consistent themes have been communicated to us. These are the opinions of residents, we do not provide them as “arguments” or statements of the developer’s intentions, merely theories that are floating around, for you to consider.
1. Concerns About What a Full Environmental Review Might Reveal
Many residents have pointed to a basic concern: a full environmental review might change how this project is understood.
A review could disclose something that significantly changes the ability to develop the property –like a Native American burial ground. We are not aware that there is any issue like this, but the developer and his army of consultants know the property better than anyone.
The less worst case outcome is that the EAW highlights just how special Watten Ponds is, and how critical it is to the surrounding area. The development so far has been reviewed as just another residential build, no different than any other generic plot of land, with no focus at all on the unique nature of the property. A well-established understanding of the uniqueness of the land may cause the City to change how it looks at this development.
An EAW is designed to surface exactly these kinds of issues. Which leads to a reasonable question residents are asking:
Why avoid the process that would clarify them?
2. A Pattern Residents Are Starting to Notice
Some residents have raised concerns about what they see as a broader development pattern.
The perception—fair or not—is that this developer often targets “marginal” properties: sites where environmental constraints like hills, wetlands, hydrology, or sensitive land features make development more complicated (there are reasons these properties have not been developed so far). Projects like these can be profitable—but often only if those constraints are minimized, reinterpreted, or treated as routine.
From that perspective, the success of this business model may depend on one key assumption: that cities will evaluate these properties the same way they would evaluate a standard, uncomplicated lot.
Watten Ponds challenges that assumption. And an EAW would force a more rigorous look at whether this property is, in fact, “standard.” And would potentially throw a wrench in this developer’s very lucrative business model.
This is especially important since Shorewood recently changed the City Code to require the Council to review a development’s compliance with the City’s Comprehensive Plan. The Comprehensive Plan speaks to the environment, quality of life and protecting Shorewood’s natural assets. A Council empowered by law to look closely at environmental issues in developments could represent a significant threat to this aspect of the developer’s business model - making this a fight not just about Watten Ponds but about the future development of Shorewood.
Some express the opinion that this legal action is a long-term investment protecting a way of doing business in an area with few undeveloped plots remaining, especially since the undeveloped plots are undeveloped for a reason – because they are “marginal” for one reason or another.
3. Frustration Boiling Over
In community discussions, another explanation comes up more bluntly.
Some residents view the filing as a “tantrum” — a reaction to not getting the desired outcome at the City level. There is a perception that when rules don’t bend, the next step is to escalate. In the EAW process, the developer repeatedly asked for special treatment, such as the chance to advance arguments after the time was up. We have heard about litigation involving this developer that seems, from the outside, to be more about emotion than anything else.
That characterization may be sharp, but it reflects a real frustration among residents who feel the process has already been stretched.
4. Attempting to Browbeat the City
Others see the move as more calculated.
Filing a writ of certiorari raises the stakes. It introduces cost, time pressure, and risk. Several residents have described it as an effort to browbeat the City—sending a message that resistance will be met with escalation, and that the City had better go along with whatever the developer demands.
Given the developer’s presence in Shorewood and Tonka Bay, some believe this is about more than one project. It’s about setting expectations for how future disagreements will play out – and sending a strong message to the City about who’s in charge.
5. Counting on a Weak Response
Another concern that has surfaced is more uncomfortable: that the developer may be counting on a less-than-robust response from the City.
Some residents believe the City’s handling of the project so far has shown signs of favoritism—particularly in how key issues, like wetland connectivity, were evaluated or overlooked. The planning department’s conclusion that the on-site wetland was not connected—despite city maps suggesting otherwise—has only reinforced that perception.
Against that backdrop, litigation may be seen as a calculated bet: that the City will not fully press its advantage, even in a forum where it traditionally holds one, that the City (through staff) may “throw” the case more or less on purpose.
Whether that perception is accurate or not, it speaks to a broader issue of public trust in how decisions are made and defended.
6. Betting on Process Gaps
There is also a more technical explanation. Certiorari review is limited to the record. If key issues—like wetland adjacency—were not fully developed or clearly documented, that creates an opening.
From this perspective, the strategy is not just to challenge the outcome, but to exploit weaknesses in how the decision was built.
What Does It Mean to Win When Winning Is Losing?
The developer may truly believe that its position is legally justified. But proving that is more expensive and time-consuming than just doing the EAW. The "reward" for winning is more cost and time.
What This Means Going Forward
These are, importantly, opinions raised by residents—not proven statements about the developer’s intent. But taken together, they point to something larger than a routine land use dispute.
At its core, the Watten Ponds case raises a fundamental question:Should properties with meaningful environmental complexity be treated the same as any other buildable lot?
That’s what the EAW process is designed to answer.
Choosing litigation over that process doesn’t resolve that question—it sidesteps it, and highlights major trust issues between residents and the City.
Bottom Line
Filing a writ of certiorari instead of completing an environmental review is a deliberate and strategic choice. Residents have offered a range of explanations. The truth may include some combination of these factors or something else entirely.
But one thing is clear: when a project generates this level of concern—and when the path chosen avoids deeper environmental review in a unique area—it reinforces the need for careful scrutiny, a complete record, and a City response that is as rigorous as the situation demands.
Because if this case is about anything, it’s about whether the City is willing and able to stand up to developers in cases where standing up is the right thing to do.