As we were leaving the plan commission last night, one plan commissioner looked at me and said “I didn’t think we could make a bad ordinance worse.” That kind of summed up my thoughts, but I wasn’t too surprised. Nothing surprises me with the Edgewater project and the zeal to cram this down our throats. While the law they passed works for the Edgewater, it seems crazy when you think about it in terms of the rest of the city. Here’s the gory details, complete with [bk comments]
LOBBYISTS
First of all, before I get started, I was just completely appalled to find that the lobbyists had found their way back to the plan commission floor. While the rest of the public sits in these comfy chairs,
the lobbyists were sitting on the plan commission floor with the plan commissioners. I thought we had stopped that practice when I was on the plan commission. I asked why there were sitting there, and the chair said she didn’t know who they all were. Fair point, on this project, but take a look.
Chamber of Commerce lobbyist Delora Newton in the longer dark hair. The other three people in this picture are project supporters.
Hired lobbyist/attorney Michael Christopher and project supporter Erik Minton
Later, here’s Amy Supple from the Hammes Company and their hired lobbyist Michael Christopher
I know I’m a bit of a stickler for the rules, but seriously, doesn’t that just look bad? As the neighbors and the rest of the public sit where they are supposed to, the lobbyists and supporters take the privileged seats. It’s kinda symbolic. The neighbors are the second class citizens to the business interests that are pushing their weight around in city hall.
GETTING STARTED
Chair Nan Fey starts out by explaining the process. They are taking the waterfront ordinance change separate from the land use and 1965 ordinance changes which will all be referred. She remind them, that this is not about the Edgewater, but about the ordinance change and they should keep their comments focused on that. [This point becomes ironic later when she explains her tie breaking vote.]
Brad Murphy says staff was asked to explain what affect the ordinance will have and what happens if adopted. The ordinance introduced would exempt non-residential properties from the way the setback from the lake is calculated. In the ordinance currently there are number of ways to determine how a building is placed on the waterfront. They currently look at the 5 lots on each side of the property and average the setbacks. In addition, there are yard requirements in the zoning district that define distance between the water and building. If this is adopted, those are still in place. Thirdly, plan commission conditional use review can establish a setback through their approval. One change is for the process to calculate the set back by using the five developed lots. Conditional use and other waterfront standards remain in place.
PUBLIC COMMENT
Tom Banish – supports but did not wish to speak. [I don’t blame the supporters for not speaking, how do you get up and say, change this ordinance for this one special interest. It’s just a terrible argument to have to make.]
Scott Thornton is representing the Marquette Neighborhood Association (MNA). They are neither in support or opposition. He apologizes because some of comments will get mixed up with the Edgewater because that is directly related. He is the president of the Marquette Neighborhood Association. He says that the the project should be within zoning standards for the site and with modifications a certificate of appropriateness and variance is possible. MNA is supportive of a project on the site, but have concerns about change in ordinance and overriding Landmarks and how those decisions will affect their neighborhood. They have two historic districts and shoreline commercial properties. He says it is odd they would consider this approach. He says the project is 20 feet away from approval. 10 feet from Wisconsin Avenue is one issue. Many think that setback would mitigate the height. He says if you are racing the hurdles you are not going to win if run around or hit them head on. There is nothing wrong with ordinance, except it is an attempt to run around the hurdles or knock them down. This is not genuine, hope you see through that, devil is in the details. (Notes they should consider changing the address from 666 Wisconsin Ave so there is one less reminder of hell, that would be appreciated.) He ends by says let’s do this right.
Charles Dykeman from Tonywatha Trail says he will try not to use the e-word. He says the purpose of shore land zoning is to protect fish and habitat, prevent further water pollution and protect scenic beauty. He learned that while on the board of Wisconsin Association of Lakes and Yahara Lakes Association. One of the things he has seen with shoreline zoning is that you can never go backwards. He talks about NR115 and says it does not apply to municipalities. Says science behind it applicable everywhere to the lakes. Something can be done for both people in favor and those who are not in favor, an ordinance can be drafted which is very specific to this project, it can be done, state does this all the time, has to be done in careful manner, sometimes looks funny, doable and for those who will conclude that they like the project, then that should be done, on the other side, well then the question doesn’t matter, not interested in that. We’ve seen where shore land zoning goes if let it alone, think of the Milwaukee riverfront, as people make their way toward the water they are building at the ordinanary high water mark, not sure if that is what we should be working for, best to stay with what we got – averaging program.
Ledell Zellers is disturbed that longstanding ordinance will be changed for all nonresidential units to encroach on the waterfront. If we allow the ordinance change for any one building, how do we say no the next time? Change should not be made to protect health of lakes and beauty of shores, everything else has a 75 foot setback and that has been in affect since 1982. The only reason that state law doesn’t apply is because it is in the city. The setback law passed because it matters how close to the water we develop. Disappointed Madison is not environmetally forward thinking and going beyond best practices but do away with setback requirements. This is important for quality of lakes. The effectiveness of zoning standards from DNR are about the impacts on water quality, they are cumulative. She reads DNR language that says that controlling development is essential to protect water quality – and habitat. She talks about mitigation approaches that could be done, but increasing impervious surface around our lakes will negatively impact our lakes. There will be increased pressure to change from residential to commercial zoning on the lakefront. Current zoning of this property is residential, so saying that the city has few commercial uses is a specious argument. The rest of the NGL (National Guardiann LIfe) property is being eyed for development and for sale, the value of that land would be greatly impacted, how could city say no if already said yes for this. She says there are other properties that will feel pressure to redevelop. Other locations would relish opportunity to take advantage of this law change. Conditional use approvals will not be a protection, given political pressures taking over routine city processes. Please protect quality of lakes, don’t support this change.
Alan Arntsen is in support and representing the Hammes Company. He says he wants to talk about what this ordinance does an doesn’t do. He says for projects exempted from language for a principal building setback they won’t need a variance from ZBA (Zoning Board of Appeals). That is the practical effect, that is why this is so important for my client. [Well, at least they are honest about it, they are just trying to avoid going to ZBA]. He says for projects that are substantial, there are different ways to do this ordinances. He says that it could be limited to commercial PUD zoning or commercial properties that are already developed. He says you could pull out the Edgewater specifically. He says substantial projects need to be passed on by policy making bodies – the plan commission and Common Council. He says if they need a variance, every other body in city could approve and 3 votes on ZBA could kill the project and that is appeal-able only to the courts which is outside of Madison policy and civic process. Substantial projects should be decided by policy makers of the city, understands argument that someone has to do it for their house, why commercial projects excepted? Substantial commercial projects go thorough substantial review in Madison, can’t say not going through a process and it is not being scrupulously examined. Single house not put through the process, quasi-judicial process ia appropriate for that. It expedites the process instead of going through this. Here with substantial project and with Edgewater you will get that review and that is the review that should decide this. 3 votes on ZBA should not decide this. Ordinance change is drafted this way cuz what is what came out of the zoning code rewrite committee. It doesn’t need to be that broad, asks that there be a recommendation to let Common Council have the final word and be the decision maker on a project his significant.
Adam Plotkin says he is President of Capital Neighborhoods (CNI) which has 5 districts – Mansion Hill, Mifflin West, James Madison Park, Bassett and First Settlement. 4 of 5 have lake frontage on Mendota or Monona and concerns are that it will allow path for commercial intrusion into these neighborhoods and unbalance the playing field for developers and residents. This has city wide implications due to the quality of land and water use. Current state law mandates ZBA process. What is the problem this ordinance is trying to solve?
James Tye in support, does not want to speak.
Fred Mohs is unimpressed with the argument that substantial projects should take a pass on usual procedure for handling setbacks. Picture yourself a neighbor of property with commercial use and all of a sudden they get to move anything built on property right up to the shore, move ahead of you who is stuck with residential setting. Jockeying for position is persuasive, this is why we have this ordinance. The current ordinance is a good way to handle a difficult problem, otherwise we would look like Shorewood and other places where there is no regulation, people are right on the water, a major or substantial project isn’t meaningful difference at all, this project is going through this arduous process because instead of going to plan department to find out what they can do on the property, developer went to the fourth floor and thought he was immune from anything, including lakefront setback ordinance. This is the poster child for why this is a bad idea. The elephant in the room is what will happen on rest of property to the east. Will this be R6H conform with this in front? Seems unreasonable, developer showed us the plan for the block, it had a powerhouse next door to power other buildings on rest of the property, where does this stop? All the way down to union, fraternities sororities and coops will be under pressure and this tremendously increases the value of those properties, please vote against.
John Martens – Not a resident of Mansion Hill area, not being paid, just an interested citizen. He was on the Zoning Board of Appeals for 10 years, quasi-judicial body that impedes variances. The reason the city is here is the lakes, fundamental to quality of life. It is abundantly clear our urban waters are the most impaired in whole country. NR115 is addressing this with minimum setbacks, basic is 75 feet, generally speaking, cities follow the lead, in this case, we are asking that commercial use, which is more intensive, go in the opposite direction of that regulation. That just doesn’t make sense, this is the nuclear option. In the zoning rewrite this was not addressed, therefore they were told the 0 setback was implied. That is not the case, not vetted in zoning rewrite process. Ultimately we should be leaders in clean up of lakes, not subvert the way to do that.
Jonathan Cooper is opposed, this is not good policy to eliminate setback for non-residential citywide. The blanket elimination will have a deleterious impact on lakes, also putting pressure on properties currently zoned residential. Second reasons he’s against is he doesn’t think this is good practice. Currently involved in detailed rewrite of code, whether eliminated or contained, it is part of that rewrite and we should consider it within the context of the zoning code instead of pluck it out and cosinder as stand alone.
Amy Supple from Hammes Company passes.
Bob Dunn from Hammes Company asked group to focus comments on substance of waterfront ordinance, this project is complicated and challenging and as a result has been about balance. They have been focused on how they can they address concerns without deviating from core of project. City staff report did an excellent job of framing the project, it meshes with the comprehensive plan. He says they need to balance diverging interests, can improve storm water quality and lakes, many things in report that relate to waterfront ordinance. How did we get here? Looks at site plan, says overwhelming issue in beginning was it was in the Wisconsin Avenue Right of Way. He spent a year to cure, dominant issue for months, cured it by move to east, but that created the podium level. Next issue was height, took away three floors for height – that caused them to bring rooms down to pick up program. Third issue was upper level of 70s addition – those are the drivers that got them to the waterfront setback. Current building is 16 feet from water, or 8 feet from cantilever, this came about as a trade off, encouraged by city to drive program below street grade, feedback receiving zoning code rewrite this would be dealt with. Interesting that every voice in opposition to this plan, also supported expansion across NGL at water’s edge, how can they be for and against the environment in same evening.[Just a thought or two. First, he was the key person who focused on the project instead of the ordinance as instructed by the chair. Second, he talks about the changes as if they were a compromise, usually with compromise, people in opposition back off as a result of the compromise. Why didn’t that happen here? Third, its too bad he has to be snarky, he should leave that to his supporters to do, it just doesn’t help his cause. He should be above that.]
Gene Devitt shows the model.
Nan Fey cautions him to focus his comments on the ordinance. [Dunn was admonished in this same fashion.]
Devitt says that he is using the model to show what could be built if ordinance passes. He notes that the alternate proposals Dunn just talked about had a setback from the lake. He says this is a stupid idea, don’t pass this.
John Shehan lives on Langdon in a old house. Madison lakes are what makes city special, to tamper with laws that impact that is dangerous, its bad public policy. He’s talking too fast and I didn’t get what he was saying about Plato – sorry. He says that if we are free to tamper with zoning laws and ordinances to do what we want or not tamper so not hurt lakes and encourage uncontrolled development.
Don Sanford says he could say “a set back is a set back” and walk away, but he won’t. He is a sailor, spend a lot of time on lakes, one of things that he is impressed by that if he had a dollar for every time he took someone out on the board and showed them from the union to James Madison Park someone asked is this is downtown, he’d have a new car. This is a beautiful soft shoreline, change in setback requirement along the shoreline is a slippery slope in inching toward the waterfront, doesn’t matter if residential or commercial. Beautiful shoreline is in keeping with Madison, we have struggled so hard to preserve it, if change now and come back in 80 years after we have passed (descend or ascend to get here) and see shoreline lined with these big boxes, not what we want to leave for kids and grandkids. We control what comes back, set back is setback, what is good for one, good for all. Changing it just leads to more exceptions – slippery slope – don’t grant an exception. Look to future, protect the vision.
Peter Ostlind speaks on his own behalf. He says the only arguments are that there are few commercial properties along the lakeshore and since no problems, let’s just forget about it. If appropriate for residential, also appropriate for commercial. They should have to go to ZBA for residential and commercial, then go to Plan Commission and Common Council. If commercial doesn’t have to go to ZBA, suggests hat differences might be encouragement to change from residential to commercial zoning. It could subvert the whole process. He says there is a vegitative strip for water quality and aesthetics, current ordinance limits vegitative removal to within 35% of the area. Non-residential properties will not be exempt from that requirement if this passes. This isn’t here on its merits. It is here for political expedience. Commission on the Environment was unanimous, reject this attempt to change ordinance to fit proposals instead of proposals to fit land use regulations.
Jim Skretny – Downtown resident for 20 years, alarmed by proposed change, opposed, agreed with comments, won’t repeat, but add that over years that lived downtown, many changes, most from PUD, talks about map that Brad Murphy shows the PUDs in downtown area. These PUDs have followed a trend, that more and more are pushing right to the lot line and now attempting to go beyond the lot line, concerned same thing will happen on waterfront. Current process served us well, why lower the bar, raping the process to make change for non-commercial developments, shorelines are rare beautiful commodity, once lost never get back, protect for me and others in the future.
James Roper lived in Madison for 30 years, lives on E Gorham by James Madison Park and Lincoln School. Lives very near the lake, concerned because in 1965 the created ordinance to protect lakefront, it is there for a reason, felt it was important to protect lakefront. Been involved with another development that required this setback, why would those requirements be less stringent for large commercial project than private individual. Even ZBA has asked why, thinks a significant project will have a big impact on lake. Zero lot line case in other project, it comes down to money, maximizing every square inch of that lot, in this case lakefront, he won’t even get into TIF and luxury condos that require tif money and all exceptions for setbacks and variance – likes some things about project, can be done better way without setting precedent. If this passes, people will say you did it for them, why not us?
Bob Klebba says his husband and I own property in Town of Cross Plains, it is in the headwaters of the mighty sugar river flow, it is a navigable waterway and it is navigable in the same legal sense that Lake Monona is, he was restricted to a certain setback which came up when he needed to rebuild the drive way which crosses the river. He owns 64 acres, also has two intermittent streams on county zoning maps, in any of these can’t developer within 300 feet and has many hoops to jump through to put in gravel across existing culvert to get a driveway. The town, county, DNR and others needed to approve after doing a engineering study and last, not least, then get bonded in order to get permit to start construction – for a small private development, on 64 acres in western Dane County. This is a much larger development and the law is being changed to permit infinitely easier development. Who is leading the regulations on the environment, he thinks if looking at changing regulations to allow development this close to lake Monona, we are looking at a huge black mark on what we are saying about the environment in Madison. Should be same sort of restrictions as they face in rural township of Cross Plains, other issue is storm water. They are very sensitive to that on their property, we do not want storwater heating up our trout stream and he hasn’t seen anything from Edgewater showing that it will improve the temperature and water quality, or address pollution of water coming form impervious surfaces.
Susan Schmitz is lobbyist for Downtown Madison Inc. She says the waterfront setback change for Edgewater should be done because the project is big enough and significant enough. Council should decide not ZBA and the courts. Plan commission and council should decide. The public easement makes setback immaterial, they have addressed the shoreline issues with the pier walkway and stair.[I must not have been paying attention, because that makes no sense. How does further development of the shoreline address the setback requirement.]
Paul Shoenenman says one of reasons to request this is that there are few commercial lots that would be impacted, but many residential lots will be under pressure to become commercial. He says that the waterfront has a tiny public walkway, but it is as tight as can be and that is the direction we need to go to connect that with James Madison Park which is as shorter term goal and longer term to extend the path to the Memorial Union. He tells the story about seeing an informational presentation by Apex about their hotel on W Wilson and they showed a proposed rendering from Monona terrace where they developed a lot to the full height and width of the lot and when that slide was shown, there was a collective gasp from the public, and even tho it faces the lake and not on the lake, that is not where we want to go. Obviously the public reaction there is telling. Think long term, we have a beautiful city laid out by John Nolen, we have the Capitol with a grand boulevard, we’re lucky to have this lets preserve what we are lucky to have. East Wash was built to have maximum capacity, lets preserve and plan for the future.
David Waugh – lives by Yahara river and on isthmus, between 2 lakes, this is upsetting, we put rules in place to protect the water and when we turn this over to politics everyone loses, unless you are experts in the field, leave it up to the experts, has a hard time with this project throwing out all our experts, and calling expert committees and professional experience into question. We must protect water, it should not be subject to political whim or any project that comes along. He is concerned about this ordinance allowing large swaths of this neighborhood to be zoned commercial and built on the lake, precedent matters, please consider experts advice and leaving this in the hands of ZBA. zba, Don’t make water quality a political decision, not where it should be.
Fae Draemock says on April 19, 2007 there was a meeting at the Water Utility and the board heard an expert consultant gave a presentation, talked about – [uh-oh, she got a little technical, I hope I got this right, and I’m sure I won’t get the terminology right here.] the aquatard, which is a thin layer of shale that keeps contamination from our deep aquifer. Due to the pumping we are doing, whatever contamination we put in lake, its leaking into deep aquifer, we are putting at risk the deep aquifer, this isn’t a big e environment issue, this is our drinking water. We have done shoreline construction before, but we know better now, we can protect our water. Dunn has said there will be some contamination during construction, can’t just vacuum out, will travel laterally and vertically. She says the lakes are not being recharged by aquifer, they are recharging the aquifer, when people come to Edgewater to view beautiful views she doesn’t want to have to tell them please don’t drink the water.
Mark Clear wants to address some statement. He says statements made declaring or implying that this would do away with waterfront setbacks are wrong, this just changes one of methods of calculating what the prescribed setback would be, he says plan commission would have more authority than it has now. [Note later on, this is what the city attorney also says, but Planning Unit Director Brad Murphy makes a persuasive counterpoint.]. Clear says a number of people made false correlation between environmental quality and method to calculate setback. The correlation between process to modify properties from res to commercial use, would not change that process. Don’t accept argument this will create slippery slope and pressure for more development. [Note, there is a rather awkward moment later that also refutes this statement.[ He offers to answer questions.
QUESTIONS OF SPEAKERS
Lauren Cnare asks Arntsen about his allusion to many ways to rewrite this to support the Edgewater. She says she gets that the Edgewater is on the lake edge but she doesn’t want to open the floodgates, do you have suggestions to rewrite it to allow it where it is without opening flood gate?
Arntsen says there are three wasy to do it
1. There was an exception made for the convention center and they could make and exemption for the Edgewater. There are issues with spot zoning, you need to make a record for the exception. That exception could be that it is already there, there is an existing set back and this is further from that 8 to 16 feet and there are public amenities. This will require stormwater mitigation, accept project and make record as to why general public policy for city not just for one project.
2. More narrow would be to accept commercial projects that are already developed commercial projects, build up to existing project, use that as the set back line, instead of five properties on either side. Still limited to commercial properties with setback.
3. Exempt properties that are subject to a PUD process, custom zoning for the site, for a certain magnitude. For projects in PUD process, that would cover shoreline setback rather than consider zoning variance.
Cnare asks Dunn why he doesn’t want to go to the Zoning Board of Appeals, she says he made a convincing hardship argument about why it needs to be constructed the way it is.
Dunn says its an important question, he says there are competing interests and issues on this project . . . sorry I missed a bunch, there were several people talking around me and I couldn’t hear . . . he says the evolution of design created the problem, need to look at all the issues, . . . the course we are on is to have the decision made as one component of many, not something he can determine on its own, council should decide. If go to ZBA – council would not determine what is in the public interest . . . council could decide that this is in the common interest, unelected officials could decide, we could end up in court, strong public interest being served . . .
Julia Kerr asks Artnsen about his argument for “significant projects”, which is undefined, you said that these issues decided by policy makers, who then would apply the variance standard that the ZBA ordinance.
Arntsen says plan commission.
Kerr says that the ZBA standards are different than conditional use standards, there are 9 standards.
Arntsen says that hardship standards, no one would apply them, but appropriate development pattern that would be for the plan commission.
Kerr asks – clarifies – 9 standards that zba make finding that all the following conditions are present – who then applies these.
Arntsen says standards would be plan and common council, variance standards not reproduced.
Kerr says that for significant projects variance standards should not apply.
Arntsen. Yes.
Tim Gruber clarifies with Dunn that the podium building is 35 feet from waterfront. 1940s building is 16 feet back. 70s building is 16.5 feet back.
Clear explains he is handing out a substitute. It is an alternative version of the ordinance amendment. He doesn’t have enough copies for the plan commission and staff and none for the public [but I bet the Hamem company and army of lobbyists have seen it]. He adds language that this would only apply to properties with more than one principal building, so further restricts number of parcels to which this would apply, possibly to 1.[Watch for the fatal flaw in this strategy in part II)
Erik Sunquist – asks how this applies to campus. Missed the answer, too many people talking around me.
Someone asked why give break for multiple buildings or just a way to tailor it, to make it more specific to this parcel.
Didn’t hear the answer.
OTHER THERE
Murphy announces there are 16 others in support, it sounded like several paid lobbyists, consultants, landscape architects and Rosemary Lee. Several used their office addresses again, so I don’t know if they lived in or out of the city.
Murphy announces there are 5 others in opposition.
I didn’t catch all the names, as by the time we deal with bad hand writing, bad pronounciation and the fact its a little hard to hear – the names would be kind of meaningless and inaccurate.
Sorry, I have some meetings to go to (yeah, not really a day off . . . this is why I never get my days used up!) . . . will try to get the rest up late afternoon, but I’m not sure I’ll get it finished . . . Part II is here.
