The decision before the council on Tuesday in NOT whether they should approve the Edgewater project, it is only a question of if they should reverse the Landmarks Commission decision. If they overturn the Landmarks decision, the project still has a long line of exceptions and variances and changes they need to get/make to laws and ordinances in order to get their project approved.
The way I understand it, they still have to go through at least the following processes if not more:
– Planned Unit Development Zoning Approval (Urban Design Commission, Plan Commission, Common Council)– Conditional Use Permit – Capitol View Height Penetration (Plan Commission)
– Conditional Use Permit – Waterfront Development (Plan Commission)
– Waterfront Setback Variance (Zoning Board of Appeals)
– Amendment of the 1965 Wisconsin Avenue Vacation Ordinance (Plan Commission, Common Council)
– TIF Boundary Amendment (Board of Estimates, Joint TIF Board, Plan Commission, Common Council)
– TIF Request (Board of Estimates, Common Council)
– Change of Wisconsin Avenue street grade (Council and other committees)
– Subterranean Lease and/or Encroachment Agreement (Plan Commission, Common Council)
– Developer Agreement (for Public Spaces / Right of way (I think this is staff only unless council directs otherwise, they would likely include requirements they want to see in the PUD approval as conditions of approval.)
– Management Agreement (for Public Spaces) (Also likely a staff function with direction through conditions in the PUD unless the council asked to see it again)
Here’s how I understand the limited decision before the council on Tuesday and how I would break it down.
FINDING THE ORDINANCE
(Skip this section if you don’t care about looking directly at the ordinance or already know how to find it – I can’t figure out how to link to it in a meaningful way. I quote it extensively below.)
MGO 33.19 is where you find the Landmarks ordinance. In order to find it on-line I usually go to the city’s website, go toward the bottom of the front page where is says “most requested services”, slide the menu down and click on Madison General Ordinance. That will then take you to some service that has our ordinances on-line. They get updated quarterly, so they aren’t always the most updated source, but in this case, no changes have been made in quite some time, so we should be safe. Once you get there click on “Madison Code of Ordinances”. Then you’ll get a screen with several panes. Go to the left hand one and scroll down until you see chapter 33, “Committees, Board and Commissions”. After clicking on that, go to the right hand panes and use the pdf search function and search “landmarks”. The first hit will be the title of the ordinance, the second will actually be the ordinance. Otherwise, you can just go to page 26 where it starts. It goes from page 26 – 55.
You might wonder why I explained that . . . but its out of shear exhaustion from explaining it over and over and over and over to people who can’t find what they need in our ordinances.
WHY IS THE LANDMARKS COMMISSION INVOLVED
The ordinance requires in 33.19(5)(b) on page 28 that:
(b) Regulation Of Construction, Reconstruction and Exterior Alteration.
1. Any application for a permit from the Director of the Building Inspection Division involving the exterior of a designated landmark, landmark site or structure within an Historic District shall be filed with the Landmarks Commission. (Am. by Ord. 8081, 7-29-83; ORD-08-00109, 10-7-08)
The ordinance goes on to say that:
2. No owner or person in charge of a landmark, landmark site or structure within an Historic District shall reconstruct or alter all or any part of the exterior of such property or construct any improvement upon such designated property or properties within an Historic District or cause or permit any such work to be performed upon such property unless a Certificate of Appropriateness has been granted by the Landmarks Commission or its designee(s) as hereinafter provided.
[omitted language about the designee . . . ]
Unless such certificate has been granted by the commission or its designee(s), the Director of the Building Inspection Division shall not issue a permit for any such work. (Am. by Ord. 8081, 7-29-83; ORD-08-00109, 10-7-08)
Since this site is in the Mansion Hill Historic District (map) they are required to apply for a Certificate of Appropriateness.
REQUESTING A CERTIFICATE OF APPROPRIATENESS OR VARIANCE
How they apply for a certificate of appropriateness can be found here. There are several options for them as follows:
How to Obtain a Certificate of Appropriateness for Exterior Renovation and Alterations and New Construction
– General Information
– Procedure for Obtaining a Certificate of Appropriateness for Exterior Renovation and Alterations
– Procedure for Obtaining a Certificate of Appropriateness for New Construction
– How to Obtain a Certificate of Appropriateness for a Demolition
– Procedure for Seeking a Variance from the Landmarks Commission
WHAT THEY SUBMITTED/WHAT INFORMATION WAS PROVIDED TO DECISION MAKERS THUS FAR
JULY 15th – “INFORMATIONAL PACKAGE” (the old version of the project)
I’m unclear if this was intended to be an application. At no point do they request a Certificate of Appropriateness for Exterior Renovation and Alterations, New Construction or Demolition and they don’t ask for a variance.
AUGUST 10th PUD SUBMITTAL PACKAGE (old version of the project)
This submission, on page 12 says it is for:
The Project is submitted for the review and consideration of the City to receive
the following grants and approvals:
– Planned Unit Development District (“PUD”) – GDP/SIP
– Conditional Use Permit – Capitol Height Encroachment
– Other Grants and Approvals as Required by the City of Madison
So again, it is unclear if they are applying for a Certificate of Appropriateness for Exterior Renovation and Alterations, New Construction or Demolition and they don’t ask for a variance. And in the 63 pages of the submittal I didn’t see them ask for a Certificate of Appropriateness or Variance at any point. And, the submittal is incomplete with the 7 of the exhibits at the end of the document left where they promised to insert information later.
AUGUST 19th STAFF MEMO
In this memo, they state that the applicant applied for a Certificate of Appropriateness, but no variance. The staff laid out the criteria they had to follow, provided the list of what other city approvals were needed, state that the application was incomplete and gave them a list of additional materials that they requested from the developer that were to be presented to the Commission on August 24th. If you read any one document at this point, this would be the one I recommend, it has alot of information that would be helpful if you are trying to understand what Landmarks needed to approve the project, even tho this is still the old project, it list alot of valuable information.
AUGUST 20th STAFF MEMO
Here they explain additional information was submitted, but it was late and they didn’t have time to review it.
AUGUST 20th LANDMARKS MATERIALS AND HERE (Still the old project)
If you compare what they submitted compared to the list the staff requested. This is the list staff requested:
1. Height/Massing studies of new tower
• Visually Related Area: show existing/proposed buildings from project in context
with all buildings within the visually related area to demonstrate the proposed
project meets section 33.19(10)(e)1-5 (Guidelines Criteria for the Mansion Hill
Local Historic District) and other applicable parts of the Landmarks Ordinance
Chapter 33.19. Provide plans that are to scale and fully dimensioned. [MISSING]
• A 3-D model of the proposal including the context of nearby properties may assist
in this evaluation.[PROVIDED AT THE MEETING, GIVEN TO STAFF A MONTH LATER]
2. Perspective views requested by the Landmarks Commission:
• Views down Wisconsin Avenue[MISSING]
• Views from Langdon[MISSING]
• Views from Pinckney/Gilman[MISSING]
• Views from Lake Mendota[MISSING]
• Views down staircase towards Lake Mendota[MISSING]
3. Alterations to Existing Buildings (both original tower and 1970’s addition)
• Proposed alterations to existing structures are referenced in section 33.19(10)(d), which refers back to 33.19(5)(b) and (c)
• Existing conditions vs. renovations/alterations for the following:
– Dimensioned site plans
– Dimensioned elevations/cross sections, colored with shadow lines
– Materials selections
• Details on two connecting bridges
• Information on the added story on the original tower
• Interface between the public staircase and the existing buildings
4. New Tower and Grand Stair / Public Terrace (plaza above 70’s addition / lakefront area
• Dimensioned elevations/cross sections, colored with shadow lines
• Materials selections
• Grading plan
5. Design Details:
• Design details for elements such as windows, doors, railings, fencing, signage,
lighting, canopies, landscaping and street furniture will need to be approved prior
to the issuance of a Certificate of Appropriateness.[MISSING]
• A larger sized set of plans, or enlargements of some elevations may help to
illustrate some of the details more clearly.[UNCLEAR IF PRESENTED]
I may have been generous in saying some of this was provided or perhaps, without explanation, I missed something, but it was still pretty incomplete.
AUGUST 24 PRESENTATION TO LANDMARKS
In the 82 pages, I don’t see them directly addressing the criteria for a certificate of appropriateness or for a variance. You probably want to check out the Thelma and Louise animation going down Wisconsin Avenue . . . very entertaining. I’m not sure who would ever see that perspective or what it was supposed to show. Probably good it is still labeled “draft”.
NOVEMBER 16th LANDMARKS SUBMITTAL – NEW BUILDING
Finally! 18 days ago, they submitted something that tried to address some of the ordinance requirements! Not in as complete of a fashion as I would like, but much better. With Thanksgiving coming up, there not much time to review it and get it to the commission, but, its a step forward.
NOVEMBER 19TH LETTER – REQUEST FOR VARIANCE
Again! Finally! The requested the variance which means they probably just figured out that they had major issues with the ordinance. That should have been figured out and discussed and addressed long, long, long ago.
NOVEMBER 18TH INFO FOR JOINT LANDMARKS/URBAN DESIGN MEETING, AND HERE.
The first link which is section 1 – 3 are comparison between the old and the new projects and a Q&A on their view of how the project is consistent with the Landmarks Ordinance. The second link is their Q&A on issues they see with Urban Design criteria.
MONSTER HANDOUT FROM THE 30TH, AND HERE.
This was what was handed to the Landmarks Commissioners the night of their 7 hour meeting, at least the council will have some time to look at it in advance. Tho, by this point, everything is just starting to look the same and blur together for me, they have handed out so much info, much of it duplicative. There is some new info.
FINAL STAFF REPORT
Again, if you read only one thing, the staff report should be it! It summarizes quite a bit of info.
OTHER INFO
– Letter from Nation Trust for Historic Preservation and CNI President
– Photos from the tour.
– Written public Comment from 11/25 (all against)
– 37 more pages of written comments (all against), including concerns from Tenney Lapham Neighborhood Association (2 national historic districts), Marquette Neighborhood Association (2 of Madison’s Historic Districts), David Mullenhoff, an alternative plan from architect James McFadden, comments from the Mansion Hill Steering Committee with photos of the neighborhood and pictures of their model.
WHAT THE LANDMARKS COMMISSION WAS REQUIRED TO LOOK AT FOR A CERTIFICATE OF APPROPRIATENESS
To grant a certificate of appropriateness, this is what the 33.19(5)(b)4.c. says:
4. Upon filing of any application with the Landmarks Commission, the Landmarks Commission shall determine:
[cut part on landmark and landmark sites]
c. Whether, in the case of any property located in an Historic District designated pursuant to the terms of Subsection (6)(d) hereunder, the proposed construction, reconstruction or exterior alteration does not conform to the objectives and design criteria of the historic preservation plan for said district as duly adopted by the Common Council. (Sec. 33.01(4)(b)3. Renumbered to 4. by Ord. 11,070, 12-6-94)
So, next, we have to look at the “objectives and design criteria of the historic preservation plan”, because 33.19(5)(b)5 says:
5. If the commission determines Subparagraphs a., b. and c. of Paragraph 4. above in the negative, it shall issue the Certificate of Appropriateness . . .
Admittedly, that is a bit confusing with the double negative.
So, when looking at 33.19(6)(d)1. it explains that the plan is in ordinance form:
For preservation purposes, the Landmarks Commission shall select geographically defined areas within the City of Madison to be designated as Historic Districts and shall, with the assistance of the City Department of Planning and Community and Economic Development, prepare an historic preservation plan in ordinance form for each area . . .
So, next we look at page 37. Section (e) in 33.19(10)is the Guideline Criteria for new Development in the Mansion Hill Historic District
1. The gross volume of any new structure shall be visually compatible with the buildings and environment with which it is visually related (visually related area).
2. In the street elevation(s) of a new building, the proportion between the width and the height in the facade(s) shall be visually compatible with the buildings and the environment with which it is visually related (visually related area).
3. The proportions and relationships between width and height of the doors and windows in new street facade(s) shall be visually compatible with the buildings and environment with which it is visually related (visually related area).
4. The rhythm of solids to voids created by openings in the facade of the new structure should be visually compatible with the buildings and environment with which it is visually related (visually related area).
5. All new street facades should blend with other buildings via directional expression. When adjacent buildings have a dominant vertical or horizontal expression, this expression should be carried over and reflected.
WHAT THE COMMISSION FOUND REGARDING THE CERTIFICATE OF APPROPRIATENESS
Basically, they didn’t even discuss criteria 2 – 5. They just got completely hung up on, and could not find that:
1. The gross volume of any new structure shall be visually compatible with the buildings and environment with which it is visually related (visually related area).
The staff report has information on what is considered to be in the visually related area, complete with photos and maps. This is what they had to look at:
Do you think those are visually compatible with what you have seen of the 8 stories of the building that stick up above Wisconsin Avenue?
If the photos alone don’t do it for you, here’s some data about the gross volume:
Kennedy Manor – 1 Langdon – 589,800 cubic feet
2 Langdon – 215,000 cubic feet
10 Langdon – 107,100 cubic feet
12 Langdon – 159,000 cubic feet
Edgewater – 1,692,200
That makes the Edgewater between 2 and 15 times the size of the buildings in the area to be compared. It’s no wonder the Landmark’s commission couldn’t find it met the requirements – but they could still look at doing a variance . . . more details on what they discussed here.
WHAT THE LANDMARKS COMMISSION HAD TO LOOK AT TO ALLOW A VARIANCE
See page 54, 33.19(15):
(a) Authority. The Landmarks Commission may vary the criteria for review of additions, exterior alterations or repairs for designated landmarks, landmark sites and improvements in any Historic District and the criteria for new construction in any Historic District in harmony with the general purpose and intent to preserve the historic character of landmarks, landmark sites and of each Historic District only in the specific instances hereinafter set forth and only if the proposed project will be visually compatible with the historic character of all buildings directly affected by the project and of all buildings within the visually related area.
The variance procedure and standards are designed to prevent undue hardships caused by application of the strict letter of the regulations of this chapter and to encourage and promote improved aesthetic design by allowing for greater freedom, imagination and flexibility in the alteration of existing buildings and the construction of new buildings within an Historic District while ensuring substantial compliance with the basic intent of the ordinance
This confused me to some extent, as it requires them to find that it is visually compatible with the buildings in the visually related area, which they just found it wasn’t . . . but, it did expand the area they could look at by including not just those in the visually related area, but also those directly affected.
The standards are set out in the ordinance at (15)(c):
(c) Standards. The Landmarks Commission shall not vary the regulations of this ordinance unless it makes findings of fact based upon the evidence presented to it in each specific case that one or more of the following conditions is present:
1. The particular physical characteristics of the specific building or site involved would result in a substantial hardship upon the owner as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out, provided that the alleged difficulty or hardship is created by this ordinance and has not been created by any person presently having an interest in the property.
2. In the case of the alteration of an existing building, the proposed design would incorporate materials, details, or other elements not permitted by the ordinance but which can be documented by photographs, architectural or archaeological research or other suitable evidence to have been used on other buildings of a similar vintage and style in the Historic District in which the building is located, provided that the project will not destroy significant architectural features on the building.
3. In the case of new construction, the proposed design incorporates materials, details, setbacks, massing or other elements that are not permitted by the ordinance but which would enhance the quality of the design for the new building or structure, provided that said new building or structure otherwise complies with the criteria for new construction in the Historic District in which the building or structure is proposed to be located and provided further that it would also have a beneficial effect on the historic character of the visually related area.
Additionally, they can only grant a variance for the following things:
(d) Authorized Variances. Variances shall be granted by the Landmarks Commission only in accordance with the standards set forth in (13)(c) [sic] above, and may be granted only in the following instances:
1. To permit residing with a material or in a manner not permitted under this chapter.
2. To allow additions visible from the street or alterations to street facades which are not compatible with the existing building in design, scale, color, texture, proportion of solids to voids or proportion of widths to heights of doors and windows.
3. To allow materials and/or architectural details used in an alteration or addition to differ in texture, appearance and design from those used in the original construction of the existing building.
4. To permit the alteration of a roof shape otherwise prohibited under this chapter.
5. To permit the use of roofing materials otherwise prohibited under this chapter.
6. To allow use of materials for new construction which use would be otherwise prohibited under Sec. 33.01(12)(f)1.b.
WHAT LANDMARKS DECIDED ABOUT THE VARIANCE
You can see what they discussed here, as there are many aspects to this section, but they still couldn’t find there could be a variance. Therefore the certificate was denied.
WHAT HAPPENS WHEN DENIED?
33.19(5)(b)5. says:
. . . Should the commission fail to issue a Certificate of Appropriateness due to the failure of the proposal to conform to the above guidelines, the applicant may appeal such decision to the Common Council. In addition, if the commission fails to issue a Certificate of Appropriateness, the commission shall, at the request of the applicant, cooperate and work with the applicant in an attempt to obtain a Certificate of Appropriateness within the guidelines of this ordinance. (Am. by Ord. 11,648, 8-20 & 8-26-96; ORD-08-00109, 10-7-08)
So, appeal to the council wasn’t the only option. They could have continued to work with the Landmarks Commission. I never heard anyone mention that as an option, except the Landmark’s Commission themselves. They even passed a motion at the end of their last meeting to that effect. While they didn’t have immediate answers at the time, the expressed interest in continuing to work with them.
Here’s the process for the appeal. 33.19(5)(f)
(f) Appeal. An appeal from the decision of the Landmarks Commission to grant or deny a Certificate of Appropriateness under Subsection (5)(b) and (c) may be taken to the Common Council by the applicant for the permit. In addition, an appeal from the decision of the Landmarks Commission to grant or deny a Certificate of Appropriateness for any building or demolition project requiring a public hearing, whether this determination is made upon receipt of the application for a demolition permit or at the end of the one-year period in a case where action on the application has been suspended, or to suspend action on a demolition application, may also be taken to the Common Council by the Alderperson of the district in which the subject property is located, or by 20% of the property owners within 200 feet of the subject property.
Such appeal shall be initiated by filing a petition to appeal, specifying the grounds therefore, with the City Clerk within ten (10) days of the date the final decision of the Landmarks Commission is made. The City Clerk shall file the petition to appeal with the Common Council . . .
The grounds they stated are kind of like two kids fighting . . . “yes you did”, “no I didn’t”, “yes you did” etc, etc etc. It would have been better if they had stated what their specific argument is. Was it about gross volume? the definition of “environment”?, the visually related area? etc? etc? I’m not sure what their ground are.
WHAT THE COUNCIL MUST CONSIDER UPON APPEAL
When considering the appeal, the council must follow this ordinance 33.19(5)(f)
. . . 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.
Key elements of their decisions are:
– Their decision has to be “based on the standards contained in this ordinance”. So, they have to look at the standards for the Certificate of Appropriateness and the Variance – same as the Landmarks Commission looked at.
– They have to balance the “interest of the public in preserving the subject property” with the “interest of the owner in using it for his or her own purposes”. This is interesting in that the “owner” is not Hammes Company, but the Faulkners and National Guardian Life.
– They also have to find that “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“. It also goes on to say that it is provided that “any self-created hardship shall not be a basis for reversal or modification of the Landmark Commission’s decision.”
CONCLUSION – LAW SUIT?
So, in all of that, in all those things that they have to consider, the criteria for the certificate of appropriateness, the standards for the variance and reasons it can be granted and the additional criteria added in appeal about owner, I’m having a hard time seeing how the council, if it follows the ordinance, can reverse the Landmark’s Commission and if they do, I don’t see how everyone doesn’t end up in court.
I know people want to see the Edgewater renovated and approved, but we also have laws in place. The Landmark’s Commission couldn’t just ignore the laws, and neither should the council. When people are elected, they sign an oath to uphold the laws of the City of Madison, breaking that oath shouldn’t be taken lightly.
I think its time to go back to the drawing board and to work with and have a dialog (give and take) with the Landmarks Commission, city staff and the neighbors in the historic district.
