Public Hearing begins . . .
PROCESS
Mayor explains how he and council leadership, each person could speak 21 minutes, 3 people in one hour. 56 speakers, more fair to let everyone speak. Combine 3, 5 and 6. Appellant gets 30 minutes to speak on 3, 5 and 6 then appellent on item 5, they get 30 minutes then take questions then go into alternating 5 minutes each, after every 10 speakers they would get opportunity for speakers. At 4 minutes 30, mayor will warn the speakers. Sound fair? They agree.
Verveer asks if they have to suspend the rules and make a motion. Mayor says they don’t. Verveer says we need an ordinance suspension. Mayor says ok.
Verveer asks about state statutory laws, May says that there is none he is aware of.
Verveer asks the Mayor if May has signed off about concerns about merging the records. May says if appeal, the record could be larger, but no legal issues.
Mayor says departure from rules, is there objection, none.
Dunn starts his presentation, I’m not going to get it all, but just the main points:
– He says this follows the zoning, and that it is changed by PUD, design has improved, PUD is site specific and doesn’t set precedent, overwhelming information submitted, thinks he complied with all city ordinances. When look at all the issues, brought it to a point where make a decision, the decision is yours. There are facts we don’t agree on, no one is right or wrong, this is complex, only you can decide.
– TIF is a government tool for public infrastructure, and development. It meets the two goals of economic development and neighborhood development. Proposal is a public-private partnership. This project is bigger than Union Terrace and slightly smaller than Monona Terrace. He has a chart on the fiscal impact on the city. No power point, instead they have HUGE boards. He talks about why the public space is so great for the city.
– Landmarks appeal, we went back to landmarks, and we are in the same place. He wants to walk through the landmarks ordinance on appeal. He says they can reverse landmarks if they do the balancing test. He says that the visually related area has been established, he says the discussion has changed to includ ethe neighborhood too, he says not it includes the NGL building and 516 Wisconsin Ave. He reads the gross volume language. He says that there are many metrics that can be used. he says it doesn’t say what they use in measuring visually related area. He says the can use FAR (floor area ratio) and other issues that are in other ordinances. He says none mention cubic feet. He talks about the FAR of other buildings in the area. He talks about the capital height. He talks about height to width ratio. He uses other statistics to compare the buildings and says you can use any of them and you will get different results. He says when you use industry norms, you would find it meets the compatibility test. He goes through the other criteria (WHICH NO ONE IS DISPUTING – AGAIN NOT YELLING, JUST PUTTING MY COMMENT IN ALL CAPS). He says when apply criteria in ordinance, there is ambiguity, they don’t have an absolute. He says when applying the balancing test they have to demonstrate reasonable use and/or serious hardship. He says the hardship is due to exterior wall of the building and repairs necessary, if not corrected the building will fail. Windows and doors not ADA compliant, need to fix the structure of the buildings, 70s building is precast concrete. None of them are maintenance issues. Stairwells need to be dealt with, elevators need to be expanded, topography of site have other conditions, configuration of the floor plates is a problem, mechanical system need to be replaced to meet code. Ownership has to comply with code. Serious hardship you get there quickly. He reads from city attorney memo. He says this is difficult, there is no clear definition. Hard to apply language in ordinance. When looking at balancing test you have a different test to apply. In conclusion, long road, hopes we get to a conclusion tonight. This project raised the bar in effort and interaction, it is a difficult decision, no one is right, no one is wrong, its a decision only you can make. He asks for two things. He asks for opportunity to work with you and to go through process to get your up or down vote, as worked through the process, he asks them what the common element is on the issues, what rises to the surface on all three fronts they talk about community, economic development, the future. Important decision for city, only you can make it, do what is best for community. Not sure he ever worked on more challenging project that has had a greater impact on the community that this project will have in Madison in the next few decades. Only way to get there is with your help.
Here’s the picture of the little girl they shameless put up there, with Sarah Carpenter the Hammes PR person and sister of Bob Dunn and an example of the charts they are using.
By the way, its about 8:15 and and if they give the others a half hour and they have 56 speakers that is over 5 more hours of testimony, it will be 1:30 by the time they start discussing, if I understood everything right.
NEIGHBORS PRESENTATION
Dean Richards, there to represent neighbors, asks them to send them back to the commission. Says one issue is if the appeal if valid. He says 20% of those notified were supposed to sign, the dispute is how you count property owners. He says there are 26 owners, 20% is 5, 6 submitted. City Attorney says that the property owners are counted for each property they own, which would make it 31. The city only sends one notice to each owner, not one to each property. Even if except city attorney’s definition. They have 7 signatures that they sent in as an amended petition. They did that because of the confusion with the lists that occurred. They were told they had the correct and only list from the clerk’s office, later they realized that they had two different lists. The city had a lsit they had never seen before. Wasn’t in legistar or in the clerk’s office, as soon as they got the new list, they filed the appeal.
Second issue, the substantive issue. MGO’s say the Plan Commission was granted the right to give conditional uses, only if find certain standards and conditions exist. It should not be granted unless they find all 11 standards are met. Absent them following that directive, they can’t grant it. Plan Commission did not make the findings necessary. This decision was made in the early morning, the transcript, the last two pages is all the consideration, there is not. There is a summary motion, a second and it passes. There is no record of them making the findings. This isn’t about if it should be granted, but did Plan Commission follow the standards, you have to reverse and send it back. He says that great efficiency in having combined public hearings. You are a quasi-judicial body this evening on the conditional use and the Landmarks issue. The record is inadequate, this is a quasi-judicial decision. You are not the final decider, on these two issues, you have to see if commissions did their job properly, if not, they should be sent back.
He speaks to the hardship issue. He says that this is similar to undue hardship, if we are regulated and orderly society, we have to follow the laws, we are subjected to hardship, we have to follow the laws. If the hardship is significantly serious is the question before you. Balance the policies against the hardship, there was a hardship presented, but this not enough to have to make a new building. The hardship you find has to be severe, not minor. There is not adequate hardship for you to overturn.
Ledell Zellers talks about the standards. Says the project is not compatible with the environment, massive intrusion, from street and lake. Also not compatible with buildings, tallest building that contributes, 65 feet is Kennedy Manor, this building is 123 feet. The other four contributing buildings are 25 – 40 feet. To include NGL is ludicrous, it is the reason the historic district wads created. It should not be considered as a precedent. They show their number on volume in a chart. You have to look at these numbers. She talks about the balancing test, creating jobs is not part of the balancing test, neither is the increased tax base. This is not preservation of the 40s building, with the extra story and the entrance that is different is not preservation and that is what they heard from the state. Also, this does not preclude any and all reasonable use of the property as the ordinance requires. Hammes Company should have done due diligence before they bought the property if they were going to have a hardship. Follow the ordinance. (I missed some)
Pete Ostlind. He speaks to the PUD, vote at Plan Commission was a tie with the chair breaking it to “move the proposal along” because they had a false deadline that there was a council meeting. Same thing happened at UDC. Plan commissioners were surprised they approved a GDP and SIP, they thought it was just GDP. He talks about PUDs in the area. He talks about the PUD criteria, number one criteria, the building is larger, wider, taller, more square feet, the criteria requires them to look at the relation to the other buildings. The mass is 2 to 16 times and it is twice as tall as NGL. Also, the comprehensive plan has to be followed, there are many broad statements. He reads from comp plan and how it requires it to consider compatibility of the buildings with the area. He also talks about downtown areas as well, the Langdon subdistrict and that says that the buildings should be 2 – 8 stories and the 8 stories should be closer to State St., and this is as far away as possible. In the Mansion Hill area, it says you should consider the underlying district, which has a 50 foot limit. This doesn’t meet the comprehensive plan.
David Mollenhoff he is concerned about what Dunn did after he completed his due diligence, he foudnthe project was in one of the most highly regulated parts of the city, with a Landmarks ordinance that requires it to comply with gross volume, 1965 ordinance had set back and funding issues, new TIF policies, 50 foot height limit and the shoreline ordinance. What he did after that was say he wasn’t going to abide by any of these laws and I want 416M. Second reasons talking tonight, concerned about what he has done or are about to do. You know he wants to build a tower 2.5 to 28 times bigger than those in the visually related area. Some thing no problem. He wants to build 123 foot building not 50 and you think that is ok. He wants to set it back from the lake less than required, you said not problem and made an exception. Dunn can live with 1965 ordinance and so you will make exceptions. And you all know that there are three exceptions to the TIF policy. He says there are at least a dozen plans, rules or policies that you have revoked or ignored for this project, he is concerned they took oath to uphold the law and you are ignored it all for one project. Good policy looks at predictability, consistency and fairness, you are doing the antithesis, what you are pursuing is unsustainable. What if NGL wants to build a Verex type building behind their building and they want the same conditions as Edgewater, is that ok? I missed some. You should use the laws to guide your decision. One minute left, but teh Mayor cuts them off.
QUESTIONS OF DUNN
Shiva Bidar-Sielaff asks about 40s building. She understands 40s building, but why does he need to build a tower.
Dunn says they did an exhaustive due diligence to look at hardship, as looked at it, they looked at alternatives, can you renovate and resolve the issues. They have a tiny chart that you can’t read that they are referring to. He talks about the original proposal. He says when they looked at the renovation, the economic did not work, it would be a hardship, just like with the Quisling Clinic. It was the economic reality. The program created by the tower is supporting the preservation of 1940s building. That is the irony of the ordinance. The ordinance treats preservation and hardship as mutually exclusive, they are not in this case.
Rummel asks about reference to Quisling Clinic, if you owned Edgewater in 1999, seeing what they were going through, would you have done nothing.
Dunn says I would do what Faulkner did, maintain it as well as he could to prevent further infiltration of moisture. No matter how hard you fight it, eventually you have to fix the problem. He says fortunately its not as severe as the Quisling.
Rummel asks about the letter from the State.
Dunn says that it was an interesting issue. In work with committees the new entry had strong support and they had support to bring back early intentions of the building, not what was built. He says that the things supported by the commission would be allowable if they follow the Secretary of the Interior Standards.
Rummel asks if you need to do that to pursue Historic Tax Credits.
Dunn says they will look at it, to see if they want to maintain design supported by three commissions or pursue the original design of the building. Do they want to pursue the tax credits.
Rummel asks what the tax credits would be valued at.
Dunn says $600-800K or slightly higher.
Rummel says they would cover 20%, he says they’d like to pursue it, but they need to go through their process.
Cnare asks about hardship, says it was compelling, she didn’t support overturn of Landmarks, what did you describe for the Landmarks commission, did you explain this to them.
Dunn says interesting question. He says no. In work with landmarks commission, they looked at 5 criteria, that does not speak to hardship or reasonable use. So, in Landmarks process not given that opportunity because that is an appeal issue.
Bidar-Sielaff says this building is larger than when it was before them. What made it larger and why.
Dunn says that he shows 15,000 sq feet of growth in the building, he has a picture. He says the design changes were due to Urban Design, they shifted the tower, to address volume, visual compatibility. That resulted in changes. The other major change is the parking area moved, the primary reason was to take traffic off public drive and enhance the public area, which made part of the parking structure area, they assign restrooms for the terrace. Also added to top of building to screen the penthouses. He says the lake side of the building was due to the shift of the building needing a truss and it changed the dimension of the rooms. Also, UDC asked for a flat plane of the wall. Finally, the tunnel needed to be added. That is 15K, 5K is visible in two areas, the other areas are embedded in the building. Also when moved the tower, had to move elevator towers.
Bidar-Sielaff asks if height was added.
Dunn says no, they counted the floor differently.
Bidar-Sielaff asks about rendering that show pedestrian scale of the building, you were asked over and over, do you have them?
Dunn shows a new rendering. [NOTE RENDERING, NOT ARCHITECTURAL DRAWING WITH THAT LEVEL OF ACCURACY] Missed some explanation.
Bidar-Sielaff asks if he owns or has an option to purchase.
Dunn says they have a contract.
Bidar-Sielaff says that her understanding of hardship is that it exists no matter who owns it.
Dunn says yes, not self-created.
Bidar-Sielaff asks about the personal guarantee of $1M and $15M by Landmark X and there is information that Landmark X doesn’t have any assets, is that correct.
Dunn says that when they go to closing with lender and city, we at closing will have to infuse $45M of equity into Landmark X to go to closing to secure the TIF commitment. That is a huge equity requirement.
Bidar-Sielaff asks about the pier.
Dunn says the pier issue has been debated quite a bit, they have had several discussions with DNR, piers are allowable on all lakes around the state, they are the norm, but there are regulations. Desire is to bring back the original pier, what they have been told by DNR, once they have a project, they can submit their application. They have told us clearly piers are allowable if they support navigable use of the waterway. Dining will be in the public access component and the terrace. They hope to have a pier, for navigable use of the water.
Mayor says 61 speakers left, be brief.
Pham-Remmele asks about Mollenhoff about ignoring laws. Do you have a sense of entitlement, is that comment or conversation happen, this is the first time.
Dunn says he won’t speak for that gentleman, those allegations are false. This is a PUD, you have approved over 100 PUDs downtown, with every PUD there is a change in city of Madison ordinance, otherwise wouldn’t request a PUD. It’s a gross misstatement to say that.
[WOW HE’S SLIPPERY, HE DIDN’T ADDRESS THE OTHER LAWS OUTSIDE THE PUD]
Pham-Remmele asks if he considers the area blighted.
Dunn says that the city did the study.
Pham-Remmele asks about the pre-payment of the public access easement, in the area of the easement is that worth $16M?
Dunn says the public access component the stair and the plaza and parking is $34M, so you are sort of getting at the essence of the TIF issue, its a partnership, you put in $16M and we put in $18M. City gets asset for public, hotel benefits. They want to encourage as many people as they can to use it. City has no obligation to maintain. You get $16m in tax increment, and managment agreement and conservation easement.
Pham-Remmele says glad we are getting a good deal. What happens if a person violates the rules what happens if people refuse to leave the terrace. People should not be using it wrong. Will we assist with removal of people. She talks about the repayment, are you confident you will make it and in the business plan is anything that goes beyond hope if they build it they will come. These are questions her constituents ask.
Dunn says that the security and police power question. He says the public terrace is different than what goes on in the hotel. They have responsibility to maintain, upkeep and security of the property, at some point they might need police assistance, no matter if on terrace or in hotel.
Dunn says in the repayment of TIF you have a high level of protection, at closing in order to secure financing, based on 98M project, will need to infuse $43M in equity and that is a high level of equity. Our debt financing is over $30M, one third of the cost, in a normal project in a normal market it would be 2 or 3 times higher. You have a significant protection against your $16M and he also guarantees performance, can seek recovery from him personally and the corporation.
Pham-Remmele asks if they will pay all the other people before the city.
Dunn says that we have a second mortgage position. But it is different, but you have permanent protections forever to occupy and use that space. When we close, it doesn’t get built if his money doesn’t go in and you get the right to protect the public interest to that space in the future.
Mike Verveer asks about $16M loan to $30M public access. Last night in TIF it was 34.7M, just now it was $18M, in TIF staff report 17.xM and engineer says a different number [$15M]. Could you clarify.
Dunn says $34M is total cost of public access, the 16 and 18.7 total $34. [REALLY? FUZZY MATH?] He says that the total of the public access space is 20.4M plus $14.3M they take responsiblity for, but the gap is limited to $16M so they have a gap of $4.4M, so they need 34.7M and you contribute 16M. They looked at the cost, $17.7 they excluded soft costs and took a portion of the site improvement. The gap is $16M that they support, the balance is on us. He says you can move the cost around wherever you want. Parking is TIF eligible, all parking is on the private side, it is TIF eligible.
Verveer also asks, on hardship, comparison to Quisling, never heard your anecdote about it, are you familiar that Quisling was wrapped around an old house. Dunn says yes. Verveer says that the reason the wall was done is because it was wrapped around the house, that was his recollection.
Dunn says there was an old house, he doesn’t think that was the fundamental problem with the house. He says that building had and extreme and serious hardship.
No more questions of Dunn.
QUESTIONS OF OTHER GROUP
Clear says that it was 45 minutes of questions for Dunn. Asks that they spend no more time than that asking questions, Mayor agrees, council doesn’t vote on it.
Rummel asks Dean Richardson. She says we erred on the list because we cross off duplicates.
Richardson says they don’t need to get to that, he thinks it is the owners and the city’s process matches with that.
Rummel says that she thinks the 6 are sufficient, so there was no basis to reject the appeal.
Richardson says yes, that is their position. Even with the analysis of the city attorney, they have 7 signatures.
Verveer asks if tonight or tomrorow morning we can take the place of the Plan Commission and simply on the record state the various standards and fill in the non-existant record, that the Plan commission neglected to do in March. What’s your response.
Ricards says that is not the proper decision and challenges them to get there before midnight. The council can review on appeal if they did their job and did it properly. The council has to review the record, regrettably, the findings are not there for you to make. The Council delegated this policy, your role is to review it, not start anew.
Chris Schmidt asks if he has any case law to back up the arguement about the counting of the owners.
Richardson says to look at your own ordinances.
Schmidt asks why they didn’t submit more signatures.
Richardson says it was done quickly, it was 10 days. He says more signatures were there on the appeal, he is counting only the names on the second mailing list.
Cnare asks if the council members could look at bulk of evidence, per public testimony they acted appropriately.
RECESS
They will restart at 9:45.
