Another Opinion on the Law and Edgewater

This one from Mansion Hill Steering Committee:

To: Madison City Council
From: Mansion Hill Steering Committee on the Edgewater Project
Date: December 4, 2009
Re: Standard of Council Review of Edgewater Appeal from Landmarks Decision

This Memorandum is being submitted by the Mansion Hill Steering Committee on the Edgewater Project in support of the decision of the Madison Landmarks Commission to deny the Edgewater project’s application for a Certificate of Appropriateness. The Memorandum concerns the City Council’s standard of review. The standard is established by Section 33.19(5)(f) of the Madison General Ordinances. The applicable part of the ordinance reads as follows:

“After a public hearing, the Council may, by favorable vote of two-thirds (2/3) of its members, based on the standards contained in this ordinance, reverse or modify the decision of the Landmarks Commission if, after balancing the interest of the public in preserving the subject property and the interest of the owner in using it for his or her own purposes, the Council finds that, owing to special conditions pertaining to the specific piece of property, failure to grant the Certificate of Appropriateness will preclude any and all reasonable use of the property and/or will cause serious hardship for the owner, provided that any self-created hardship shall not be a basis for reversal or modification of the Landmark Commission’s decision.”

In order to reverse the decision of the Landmarks Commission the Council must determine that:

1. The interest of the public in preserving the subject property is less than the interest of the owner in using it for his or her own purposes; and

2. Owing to specific conditions pertaining to the specific piece of property, the failure to grant a Certificate of Appropriateness would preclude any and all reasonable use of the property, and /or would cause serious hardship for the owner; and

3. If it finds that a serious hardship for the owner is caused, the hardship is not self-created. The ordinance states that “any self-created hardship shall not be a basis for reversal or modification of the Landmark Commission’s decision.”

If the Common Council cannot make these 3 findings, then it must uphold the decision of the Landmarks Commission.

The appropriate standard for determining when an ordinance, such as the Landmarks ordinance, precludes any other reasonable use of a property or causes a serious hardship for the owner, as opposed to a self-created hardship, is found in the case of State of Wisconsin v. Washara County Board of Adjustment, 2004WI56; 271 Wis. 2d 547. In this case, the applicant owned a lake front home situated on a 120 foot deep lot. The opposite lot line bordered a highway. The set back from the lake was 110 feet. The set back from the highway was 75 feet. The two set backs, both created by local ordinance, allowed for no building envelope. The homeowners applied for a variance in order to build an exterior porch and were denied. The Supreme Court stated that the hardship to the owners was created by the ordinances and not by their own actions.

The circumstances of the cited case are not applicable to the circumstances of the Edgewater Hotel. The hardship upon the owner has been created by the owner’s desire to build a structure of a certain size and dimension. This constitutes a self-created hardship. As was demonstrated at the Landmarks Commission meeting, there are other reasonable alternative uses of the property to that proposed at the present time.

In conclusion, under the standard adopted by the City in Section 33.19(5)(f) of its ordinances, the appeal must be denied.