Exposed: City of Superior’s Silence on Easement Violation

The Disappearing Easement: A Paper Trail of Neglect

The land in question, known as State Natural Area Douglas #2, was acquired by the DNR in 1989 as part of Wisconsin’s Statewide Natural Areas project. Along with the purchase came a Limited Development Easement, barring any structures, alterations, or new easements without state approval. But that didn’t stop the land from slipping into private hands.

Records show that in 1992, the City of Superior sold the property to private owners, Frederick and Nancy Paine, with no mention of the DNR’s easement in the deed. By the mid-1990s, aerial photography confirmed that a home and garage had been built, directly violating the easement’s terms. By 2009, even more development had occurred, including paved portions and riverfront modifications.

How did this happen? One possible explanation lies in a glaring omission: no title insurance was found for the original transaction, suggesting that basic due diligence may have been ignored. A later deed revision in 1994 also failed to acknowledge the easement, leaving the DNR’s claim over the land effectively erased from official records.

DNR’s Delayed Response and Legal Limbo

For nearly three decades, the easement violation went unchallenged. Then, in 2018, DNR legal staff finally took action. An email from attorney Richard Henneger to Superior City Attorney Frog Prell outlined the problem in stark terms:

“It has come to the Department’s attention that the City of Superior conveyed title to the property encumbered by our easement… All of these improvements on and alterations of the property are in direct violation of the terms of the easement.”

Henneger requested a resolution, proposing a conference call with city officials. However, the response from the city suggested a lack of urgency. Instead of immediately addressing the violation, Prell redirected the issue to Superior’s Planning Director, Jason Serck, to explore “offsetting” the compromised easement with another parcel of land.

The implication? Rather than enforcing the easement as written, the city appeared more interested in negotiating a workaround—potentially allowing the illegal development to remain.

The Question of Accountability

The case raises significant concerns about government accountability and land management practices. Key questions remain unanswered:

• Why did it take nearly 30 years for the DNR to act?
• How did the City of Superior sell protected land without acknowledging the easement?
• Who should be held responsible for the unauthorized development?
• What precedent does this set for other protected lands in Wisconsin?

As of 2018, the DNR was still assessing how to resolve the violations. The Fisheries program expressed interest in taking over the easement, but only after compliance issues were addressed. That process remains unclear.

Email 1 – August 23, 2018

From: Kaylin Helm
To: Terry Bay, Diane Brusoe, Jim Lemke
Subject: Administrative Owner Question: State Natural Area Douglas #2 – Proposed Name St. Louis River State Habitat Area – Closed to Public
Date: August 23, 2018

CORRESPONDENCE/MEMORANDUM
State of Wisconsin

History

1. January 1989: DNR approves the purchase of a fee simple parcel in the City of Superior for the Statewide Natural Areas project (Wisconsin Point). That same transaction included a closed-to-the-public limited development easement for the Statewide Fisheries Habitat program (Statewide Habitat Area acquisition authority).
2. March 1, 1989: The department’s Limited Development Easement is recorded (Vol 482, Page 878).
   • No title insurance can be found for this transaction. Real Estate Staff have indicated that this small easement from the City probably didn’t warrant a title policy (practice at the time).
3. Both the fee simple and easement lands were coded to the Statewide Natural Areas program in the Land Records System. Thus, establishing NHC as the program owner of both parcels.
4. On November 20, 1992, the property was sold by the City of Superior to Frederick Paine and Nancy Paine. There is mention in the deed of a reversionary clause to the City if Frederick does not pave and install concrete curb and gutter improvements by a certain date. There is no mention of easements of record or specifically the Department’s easement.
5. Based on aerial photography from the Historical Aerials View, a home was built on the property after 1992 and before 1997, not complying with the requirements of the limited development easement. At that same time, what appears to be a garage was built to the south of the home, which may also be on the easement area.
6. On April 20, 1994, the deed from 1992 was re-recorded to correct an erroneous description. No mention of the Department’s easement was made.
7. Based on aerial photography, additional development occurred between 2008 and 2009 on the easement area.
8. On February 10, 2009, a deed was recorded from Frederick Paine and Nancy Paine to Frederick Paine and Dawn Paine. This deed includes “Subject to easements, exceptions, restrictions, and reservations of record.”
9. 2018: Real Estate staff requested input on whether the easement should be transferred to the Fisheries program, which better aligns with the original intent of the easement.
   • The Fisheries program is willing to take on the easement but only after compliance issues are resolved (home built on the property).
   • Legal (Rick Henneger) has been working on this since late summer 2018, estimating program staff time of 1-2 hours for a possible site visit.

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Email 2 – October 25, 2018

From: Richard Henneger (DNR)
To: Frog Prell (City Attorney)
Subject: Easement Violation
Date: October 25, 2018

Dear Attorney Prell,

Many years ago, I was involved with the Department of Natural Resources’ de-designation of the Barker’s Island Bird Sanctuary with the City of Superior (Steve Schweppe was the City Attorney at that time). In consideration for the de-designation, the City of Superior conveyed title and an easement to certain tracts of land to this agency. I have enclosed copies of the recorded quit claim deed and the easement for your reference.

In particular, the Limited Development Easement stated:

“The City, its successors and assigns, shall not perform any alteration of the easement area; shall not place any structure or material on, over, or under the easement area; shall not remove or destroy any plants within the easement area; shall not convey any other easement for any purpose, including but not limited to road or utility easements upon the easement area without the prior written authorization of the Grantee.”

It has come to the Department’s attention that the City of Superior conveyed title to the property encumbered by our easement on November 17, 1992, to Frederick and Nancy Paine. I have enclosed a copy of that quit claim deed also. You will note that the deed makes no reference to the Department’s easement.

It is my understanding that a residence was constructed in 1993 and a barge was towed to the site in 1995. There are several mowed and paved portions of the property, including approximately 100 feet of river frontage. I have enclosed aerial photographs for your consideration. All of these improvements on and alterations of the property are in direct violation of the terms of the easement.

The purpose of this letter is to bring this matter to your attention in hopes of resolving these easement violations. Perhaps a conference call with you, other city officials, and Department representatives would be a start.

Please advise on how you would like to proceed.

Sincerely,
Richard Henneger
Attorney, Wisconsin Department of Natural Resources

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Email 3 – December 10, 2018 (2:56 PM)

From: Richard Henneger (DNR)
To: prellf@ci.superior.wi.us (Frog Prell, City Attorney)
Cc: Milligan, Diane L – DNR
Subject: City of Superior Easement Issue

Frog – thanks for taking my call today. All future communication regarding the City of Superior – DNR easement issue should be directed to Diane Milligan (608-266-0155). Same address as mine.

We are committed to service excellence.

Department clients visit our survey at [DNR website] to evaluate how I did.

Richard Henneger
Staff Attorney – Bureau of Legal Services
Wisconsin Department of Natural Resources

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Email 4 – December 10, 2018 (3:02 PM)

From: Prell, Frog
To: Henneger, Richard W – DNR
Cc: Milligan, Diane L – DNR; Serck, Jason
Subject: RE: City of Superior Easement Issue

Thanks, Richard, and congratulations on your upcoming retirement.

I am copying Planning Director Jason Serck on this as he will be instrumental in identifying any other parcels of property that might be used to offset the easement that seems to have been compromised.

Thanks,
Frog