So, the neighborhood filed an appeal. When the council and plan commission approved the change to the Waterfront setback ordinance for the Edgewater hotel, they both said it was ok because they would deal with those issues when the Plan Commission approved the Conditional Use Permit. Well, check out the thorough job they did.
CONDITIONAL USE “DISCUSSION”
(Ok, I uploaded the videos twice, and they still have the video and audio off, but they play just fine on my computer.)
There are two problems here. First of all, they didn’t do the work they said they would do, further eroding the public sense of trust and transparency. Second, legally . . . well, they gave the neighborhood a gift and truly failed to do what they were legally required to do. And the neigbhborhood called them on it, by appealing the conditional use last Thursday, more on this in a moment.
LEGAL REQUIREMENTS/FINDINGS
By failing to discuss the conditional use and by merely making a motion to approve, there is no evidence that they made the findings required by the ordinance. Here’s what the ordinance MGO 28.12(11)(g) requires:
(g) Standards. No application for a conditional use shall be granted by the City Plan Commission unless such commission shall find all of the following conditions are present:
1. That the establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, or general welfare. (Am. by Ord. 13,232, 2-11-03)
2. That the City be able to provide municipal services to the property where the conditional use is proposed, given due consideration of the cost of providing such services. (Cr. by Ord. 13,012, 2-26-02)
3. That the uses, values and enjoyment of other property in the neighborhood for purposes already established shall be in no foreseeable manner substantially impaired or diminished by the establishment, maintenance or operation of the conditional use.
4. That the establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district.
5. That adequate utilities, access roads, drainage, parking supply, internal circulation improvements, including but not limited to vehicular, pedestrian, bicycle, public transit and other necessary site improvements have been or are being provided.
6. That measures, which may include transportation demand management (TDM) and participation in a transportation management association have been or will be taken to provide adequate ingress and egress, including all off-site improvements, so designed as to minimize traffic congestion and to ensure public safety and adequate traffic flow, both onsite and on the public streets. (Am. by Ord. 13,422, 10-24-03)
7. That the conditional use shall conform to all applicable regulations of the district in which it is located.
8. That when applying the above standards to an application by a community living arrangement the City Plan Commission shall: [snip]
9. That when applying the above standards to any new construction of a building or an addition to an existing building the City Plan Commission:
a. Shall bear in mind the statement of purpose for the zoning district such that the proposed building or addition at its location does not defeat the purposes and objective of the zoning district, and
b. May require the applicant to submit plans to the Urban Design Commission for comments and recommendations, and
c. May consider the use of the proposed building as it relates to the City’s Land Use Plan.
When a conditional use application is denied, [snip]
10. That when applying the above standards to an application for a reduction in offstreet parking requirements, [snip]
11. That when applying the above standards to telecommunication facilities [snip]
STAFF REPORT
I thought maybe they could get away with saying they were approving what was in the staff report, but this is what the staff report says about the conditional use:
In addition to the Waterfront Development Standards all waterfront development must be approved as a conditional use in accordance with the Conditional Use Standards (copies of which Commission members have available to refer to). The Conditional Use Standards indicate that no application for a conditional use shall be granted by the Plan Commission unless the Commission finds that all of the following conditions are present, and then refers to the eleven standards. The Plan Commission should review the project against all of the conditional use standards. Of particular note are Standards 1, 3, 4, 5, and 6.
Standards 5 and 6 relate to the provision of adequate utilities and infrastructure including roads, drainage, parking supply, and internal circulation improvements. Standard 6 relates to measures which have been or will be taken to provide adequate ingress and egress including off-site improvements designed to minimize traffic congestion and ensure public safety and adequate traffic flow, both on-site and on the public streets. The City‟s Engineering Division and Traffic Engineering Division have recommended conditions of approval for this project.Conditional use standard #1 states that the establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, or general welfare. Staff believes that the Plan Commission could find that this standard is met with the addition of appropriate conditions of approval as recommended by the Planning Division and other reviewing agencies.
Conditional use standard #3 indicates that the uses, values, and enjoyment of other property in the neighborhood for purposes already established shall be in no foreseeable manner substantially impaired or diminished by the establishment, maintenance, or operation of the conditional use. Concerns have been expressed by some neighbors of the property concerning the enjoyment of their properties in relationship to the proposed project being built. Concerns have been expressed about potential traffic impacts, bus parking, accommodations of delivery vehicles, and blockage of view corridors, to name several. The Plan Commission will need to carefully consider the testimony provided at the public hearing, materials submitted by both the applicant and those in opposition to this project, and the comments by staff in determining whether this standard can be met or if changes to the project will be required in order for the Commission to conclude that the standard can be met.
Conditional use standard #4 states that the establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district. Planning Division staff believes that the Commission can find that this standard is met. Many of the properties in close proximity to the project are already developed and all are located in the Mansion Hill Historic District. While it may have been ideal to have an overall plan for all of the National Guardian Life property to consider as part of this planned unit development, staff believe that such a plan is not required in order to conclude that this standard is met. The remainder of the NGL property can still be developed in accordance with the existing zoning on the property, future zoning that will be provided as part of the comprehensive rezoning of properties within the City as part of the rewriting of the Zoning Ordinance, and in consideration of the recommendations within the City‟s adopted plans including the anticipated new Downtown Plan.
Staff also notes that continuing jurisdiction attaches to this project by virtue of its status as a waterfront development conditional use, as specified in Section of 28.12(11)(h)4 of the Zoning Ordinance. Continuing jurisdiction provides the Plan Commission with the ability to address any potential issues that might arise related to the operation of the greater development. In addition, staff recommends that the list of uses permitted within the PUD zoning text be revised to specifically list outdoor eating and recreation areas for the hotel, including future use of the hotel tower roof for hotel/ guest functions, as conditional uses. While it is rare for conditional uses to be specifically enumerated in PUD zoning, staff feels that it may be appropriate in this case to segregate those uses that may have the potential to create concerns and future complaints in the surrounding neighborhood in a fashion similar to the way those uses would be governed under a conventional zoning district. Such a specific treatment for the Edgewater Hotel will also allow the Plan Commission to tailor specific operating provisions such as hours of operations and use of outdoor amplified sound as conditions warrant and specifically address any future complaints directly using continuing jurisdiction. This would also be possible under the waterfront development conditional use.
The staff go on to say:
Planning staff has reviewed the project against the standards for waterfront development and conditional uses and generally believes that the Plan Commission could find those standards met if appropriate conditions are applied to the project, and if the applicant makes any changes to the project determined necessary by the Plan Commission. Staff does not believe the project will have an adverse impact on the normal and orderly development of surrounding properties, although it does recommend that certain outdoor uses proposed in the development be made conditional uses in the zoning text to allow the Plan Commission to directly address any potential future issues that might arise related to the development from the future use of the roof for hotel functions and from the various outdoor eating areas on the subject site. [Note: The outdoor eating areas for the two restaurants, café, club level and ballroom shown on the March 10, 2010 plans will receive their conditional use approval if the project is approved as presented; a subsequent conditional use approval would only be required for newly proposed outdoor eating areas or rooftop uses of the new hotel tower.] The Plan Commission will need to determine, based on testimony at the public hearing and after considering all the information provided, whether any changes to the project are needed to ensure that it does not substantially impair the uses, values and enjoyment of other properties in the area.
The staff didn’t just recommend approval, but recommended that they consider several issues on a few of the items, #3 being the the item I would have expected them to discuss or at least make a specific determination. Instead, not a word was said.
1965 ORDINANCE DISCUSSION
I know many people were disappointed in the plan commissions lack of discussion on not just the conditional use, but also the 1965 ordinance change that allows condos, the use of TIF and changing the setback from Wisconsin Ave. They spent just as little time on the 1965 ordinance.
There is no appeal for that ordinance, except to hope that the Council discusses the ordinance more than the plan commission did.
HOW TO APPEAL
Here’s what the ordinance says about an appeal:
MGO Sec. 28.12(11)(i)
(i) Appeal From Action By City Plan Commission. An appeal from the decision of the City Plan Commission may be taken to the Common Council by the applicant of the conditional use, by the Alderman of the district in which the use is located or by twenty percent (20%) or more of the property owners notified objecting to the establishment of such conditional use. Such appeal must specify the grounds thereof in respect to the findings of the City Plan Commission and must be filed with the Secretary of the Plan Commission within ten (10) days of the final action of the City Plan Commission. Final action may be either initial action on a conditional use or action following reconsideration of the said initial action under the Commission’s rules of procedure. However, reconsideration shall only occur following written notification of intent to reconsider by a Commission member to the Commission Secretary no later than ten (10) days after said initial action. Thereupon, the notice requirements of Section 28.12(11)(f) shall be complied with before the Commission reconsiders such initial action, except that the notice by publication shall be a Class 1 Notice. The taking of an appeal prior to the third day after said initial action shall not preclude or invalidate reconsideration by the Commission as herein provided.The Secretary of the Plan Commission or his/her designee shall transmit such appeal to the City Clerk who shall file such appeal with the Common Council. The Common Council shall fix a reasonable time for the hearing of the appeal, and give public notice thereof as well as due notice to the parties in interest, and decide the same within a reasonable time. The action of the City Plan Commission shall be deemed just and equitable unless the Common Council, by a favorable vote of two-thirds (2/3) of the members of the Common Council, reverses or modifies the action of the City Plan Commission. Any person aggrieved by the decision of the Common Council or any alderperson, officer, department, board or bureau of the City, may, within thirty (30) days after the filing of the decision in the office of the City Clerk, commence an action seeking the remedy available by certiorari. (Am. by Ord. 6161, 3-7-78; Am. by Ord. 12,163, 7-20-98; Ord. 12,323, 2-26-99)
WELL, WHAT’S A NEIGHBORHOOD TO DO
If their issues were not discussed by the Plan Commission, they need to appeal to have the council discuss them or send them back to Plan Commission for discussion. A conditional use is not approved by the council like other action items, conditional uses are approved by Plan Commission and that is the final action, just like demolitions.
This project, as staff noted, is one of the most contentious in history, and by ignoring the neighborhood concerns, it should sound alarms throughout the city for neighborhood groups.
When Mike Verveer and Marsha Rummel discussed this item on my “This Side of Town – Pilot Show” they, too expressed concern that the Plan Commission did not do their job and that they have spent much longer discussing much more minor projects. (I’ll try to get that video up tomorrow)
Anyways, the neighborhood did file an appeal. I’m not so certain they are trying to drag the issue out, as much as just trying to get their issues discussed, and perhaps partially addressed, instead of ignored. Especially since the plaza maintenance and use agreement was passed out after the public spoke and not even Alder Verveer had seen a copy. I think people are realistic that not every issue will get addressed to their satisfaction, but they deserve at least a discussion and consideration of additional conditions of approval. I especially appreciate that they note up front in their appeal letter:
We realize that our appeal will not be welcomed by some parties who would just love to see the end of the Edgewater process, and frankly, most of us would like to get on with our lives as well.
We have some ideas about how we could focus reconsideration, either at the Council or at the Plan Commission, that hopefully could make this process a little less painful, but still deal with important issues.
I think they are a little light on the unresolved issues, but they outlined the ones they felt were important in their letter, perhaps they just mentioned those they thought were more important, letting several smaller issues go. But, it will be interesting to hear how this will be handled.
SCHEDULE
Anyways, since there is still not a TIF application and that still has to go to Board of Estimates, they have plenty of time, unless they plan to go to Board of Estimates on the 19th and then the council on 20th, or as the Mayor recently suggested on Access City Hall, that they may do it on the 21st. Or the date may get pushed back again, allowing only 2 weeks for review of a TIF application seems absurd. I’m guessing they are waiting to make sure the application didn’t get to the staff before they did their presentation to the Board of Education – Council Liaison committee. To avoid having to specifically discuss this project.
At the moment, we have:
Council consideration of conditional use appeal: April 13th? (or considered with Landmark appeal, 1965 ordinance, PUD and TIF on the 20th or 21st?)
Landmarks: April 14th
Board of Estimates consideration of TIF request: April 19th?
Council: April 20th and 21st?
More questions than definite answers in that, but that is my guess as to what some will be pushing to make happen before April 20th. Tho, I’m not sure how that can happen, particularly the TIF issue which we still have no info on. More to come, I’m sure.
