At 2:40 in the morning the council finally started their discussion on the Edgewater . . . The first 2 to 2.5 hours were on other issues, 5 to 5.5 hours of testimony and questions of speakers. This might be a little shorter and sassier than usual, I only had a one hour “nap”. I’ll be grading the alders and making comments as we go along, overall, I was mostly impressed by most of them being thoughtful. But not all. Kristin live-blogged it here. Kudos to her!!! I didn’t have that in me, I was screwing around chatting on facebook and gmail and also participating off and on in the Isthmus live blog/chat.
PRESENTATION BY CITY ATTORNEY
It was 2:40 by the time he started his presentation. He basically re-read the memos that were sent out late yesterday. Here’s what I got out of it at nearly 3 am.
Ultimate question is under the Landmarks Ordinance, not the Zoning Code, the language is in chapter 33 and they have to look at whether or not a hardship test has been satisfied. They have to find there was no self created hardship. This is the ultimate decision, to reach that decision have to look at what Landmarks looked at including the visual compatibility and gross volume, but have to balance preservation and owners right. He says they heard all kinds of testimony about that on both sides. If after looking at test they find a hardship, then grant certificate. If not, deny. Can look at purpose and intent, but that is not the standard, don’t just look at them. Ultimately, is the hardship they must look at.
He also responds to Gene Rankin, an preservation attorney and husband of the City’s Preservation Planner who recently retired after 30 years. Says he has great respect for him, but thinks he is wrong. Landmarks is separate from the Zoning Code. Written separately and with different standards, if this was zoning it wouldn’t be here, it would be at the Zoning Board of Appeals. He reads from cases, warns them to be careful about what they wish for because if this was a znoing issue, they would have more latitude to approve.
I have to admit, as the city attorney was talking, many of the alders were talking among themselves and not paying attention – and I kind of tuned out too. He was reading from case law that I presume was in the memos.
He concluded by saying that he wasn’t going to address the ownership issue, they could read the memo themselves.
QUESTIONS OF CITY ATTORNEY
Julia Kerr asks if diagram in a visual way, at the apex would be hardship standard and then if get to yes, then you go to standards and intent of ordinance if you get to no and then go nowhere. Is that right?
City Attorney Michael May says that is backwards, start with the standards. Standards and balancing used to see if meet hardship. Can look at intent and purpose. When he says ultimate question, they get to it at the end.
Kerr confirms that they should look at standards to see if hardship has been met?
May says look at standards, do the balancing test, don’t decide it up front, you get to it at the end after the balancing test.
Kerr confirms what language she should be looking at.
May says it is 5(f). There is confusion as people flip through paper . . . says 10(e) are the standards and the main one is visual compatibility. That is the first thing to look at, then balancing test and look at that in light of if you can find a hardship.
Solomon asks if in the end, if get past the balance test, they still have to make the decision on the hardship and that is the bottom line?
May says yes, they have to make a finding about if the hardship test is met.
Brian Solomon says quoted precedent, those were examples, not a legal opinion about if hardship has been met, right?
May says yes.
Larry Palm says that public interest is specific and also talks about broad ideas, which ones are applicable?
May says landmarks ordinance says public interest in preservation of the property. The only way broader things that come in are the intent and purpose of the ordinance, can guide the decision, but not the standards applying. Can have some influence on you.
Palm asks if restoration could be in the public interest of the property? What about public accommodation as hotel or access to the lake? If not for project going forward might not be a hotel and Trek couldn’t use it.
May says that with respect to public interest, can relate both to maintaining property as exists today but also if no development, no preservation work and opening up the area as originally intended. Can’t give opinion on if hotel fits in.
Palm says it is a continued public use, if the 1940s version converted to apartments or condo then change public use and reduce the public interest in the property. Ok to take that into account.
Jed Sanborn says that reasonable use of property not mentioned.
May says yes cuz not an issue.
Mike Verveer asks about first legal memo, asks about self created hardship. How can economic unfeasibility be anything but a self created hardship. He says the limitations on the property are imposed by the ordinance and use of the land in a landmarks district.
Assistant Attorney Kitty Noonan says not just historic district but physical characteristics of the property such as shoreland property, physical constraint of already having buildings there, issue of public right of way and these are separate from the landmarks ordinance that may figure into the calculation.
Michael Verveer asks about deterioration – is it fair to say that allowing property to deteriorate is a self-created hardship.
May says if the deterioration was the sole fact that was claimed that would be a hard case to make. So, allowing it to deteriorate is a self-created hardship.
Noonan says if they allowed it to occur solely with no other factors would be problematic.
Steve King asked about hardship test – “owing to special conditions”, reasonable use of the property . . . reads language . . . “and/or” will cause serious hardship. The and/or is literal right? If find that don’t have to talk about other uses of the property.
May agrees.
Kerr asks May about the case where someone bought the deteriorated property in relationship to the zoning code. Asks aabout purchase of property being a self-created hardship. Was that case a zoning case and irrelevant/
May says yes, those concepts shouldn’t be incorporated but if they do the tests it would give the council more leeway.
Shiva Bidar-Sielaff says that deterioration as owner of property is self-created hardship, but in this case, because of the applicant/owner issue buying a deteriorated property to preserve and restore, then is that not self-created?
Noonan says all kinds of variations to the question, if black and white, if you let it fall apart and then ask for a demolition permit, that can’t be the factor. In this case, doesn’t know enough about it, heard some things about the care of the property but also age of building and issues about bringing it up to code may be issues. Yes, if you only consider that, and nothing else going on, no other hardship associated with something else, then it might be problematic. She confirms if they find other elements that led to deterioration then could be not self-created.
Chris Schmmidt asks if case law is neglect or previous deterioration of previous owner can’t be attributed to new owner?
Noonan not aware of any case that says that. But purchase of property of substandard size, just cuz purchase it, doesn’t mean you can’t apply for a variance. You would have to get special approval, but court never found that.
MANIACI MOTION
It’s 3:05 and Bridget Maniaci handed out the motion as follows:
The Common Council, having considered all the evidence before it, and based upon the standards in the Landmarks ordinance and 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, hereby:
1. Finds that the special conditions of the property create development constraints that cause serious hardships for the owner, that such hardships relate to the nature of the property and are not self created, and that the considerable public interest in preserving the property, in particular, the 1940’s hotel, will be frustrated if the project is not completed.
2. Modifies the 11/30/09 decision of the Landmarks Commission and grants a Certificate of Appropriateness once the project meets the following conditions:
– Recommendation for approval by Plan Commission. Note: the Plan Commission should closely examine and comment on the proposed project’s volume and height.
– Recommendation for approval of amended TID 32 Project Plan by TIF Joint Review Board. The amended TID 32 Project Plan shall include as an additional project cost the use of a portion of the available tax increment created through this project for TIF eligible costs relating to the preservation and revitalization of historically significant buildings within the Mansion Hill Historic District; and
– Final review and recommendations for approval by Landmarks Commission of design details of the 1940s building rehabilitation, including but not limited to top floor, front entrance element and the Rigadoon Room.[sic]
Kerr seconds “for purposes of discussion”.
CNARE SUBSTITUTE
Lauren Cnare immediately makes her substitute at the prodding of the Mayor. She makes a motion to refer the appeal not to grant a Certificate of Appropriateness to the first Common Council meeting following project deliberations by Plan Commission and Urban Design Commission and instructs them to comment specifically on the issues before them. This is the language sent to alders:
“Refer the appeal of the Hammes Company of the Landmarks Commission decision not to grant a Certificate of Appropriateness and variance for the Edgewater Redevelopment to the Common Council meeting following project deliberations and approvals by the Plan Commission and Urban Design Commission. The referral additionally instructs (requests) these Commissions, and others that may have purview, to closely examine and comment on the proposed project’s volume and height.”
Solomon and Kerr both try to second.
Cnare says this is the knottiest issue she has ever dealt with. We all agree, that something needs to happen. All agree that something wonderful should be there for all the good reasons listed (jobs, hist pres, etc) doesn’t want to be responsible for stopping the project in its tracks but also having hard time overturning – part of it is the complexity of project, part of it is complexity of the ordinance. Wants to see it move forward, usually comes back better after the process, the project should go through the machinery – project can have legs and live to fight another day if this motion is passed, this is not a linear process, we don’t have to deal with it tonight. We’re going to see it again anyways, we can learn more about project and hear more from constituents, doesn’t want it to die tonight and she thinks they would all regret that. Refer, don’t repeat same show all over again, project will come back and continue on its way and ideally we can all approve in the end.[Grade A: Good effort, creative, trying to make things happen.]
Steve King respects where Cnare is coming from and finds her articulate,[OK, let the comments begin! What? That sounded like a bit of a slap. For now, I’ll let it go and assume its the late hour.] but basis of decision on certificate of appropriateness is not related to the items we are sending on to plan and UDC, those are elements of a process that are separate from the issues at hand, hardship and legal means to overturn the decision. Not sure in best interest of developer in taking shaky ground to go on in the process without a guarantee. In the end, nothing will change the decision we have in front of us tonight. Leary of making a decision on those grounds without making that decision tonight.[Rookie. I don’t know how many times in 8 years I was told “this is final” only to have the developer come back. I agree with Cnare, if this went through the process, it might come out better. I’ve even heard some of the ideas that might help that project. This isn’t the only option. What I don’t know is what the situation is with the offer to purchase – how much is it costing and what are the banks saying. That is likely the real deal breaker here. But I don’t know that. Grade F: For one reason only, he’s not balancing the interests, he says “this is not in the best interest of the developer” – well, that is not the only thing to be looking at.]
Solomon says that – well . . . wants to say something – he asks what about going through the TIF review board before coming back, was that the intent?
Cnare says that UDC and Plan language is not limiting, should come back from plan with TIF decision, if its helpful to call that out she would do it.
Solomon says he didn’t want to read into intent, appreciates sense or notion of us having to go through this again, may have to go through it multiple times, attempt to ensure only go through this once to make it easier on developer, us and the citizens who care so much about this.
Cnare says that yes, that is correct and the intent, but ultimate goal is that they will see a different project after UDC and Plan Commission – visual compatibility might be different, probably have to have some new numbers, might change hardship and financial feasibility – we aren’t seeing the project yet, want other bodies with equal expertise to help make it work. To address one of the concerns about going forward on shaky ground – all of this is shaky ground, not sure why this project has had so much difficulty from the get go – wants something to happen here, but this is not the right thing, this gives the project a chance to become the right thing.
Palm asks city attorney if a vote to refer, how many votes will it take.
May says referral is majority vote item.
Palm asks about order of process – this is postponing a decision on if landmarks was right or wrong until we get something out of plan commission, thinks it is appropriate. Plan commission does change things, staircase might be different, that will be different when plan commission is done with it and it might give us comfort. We will see this all in one night, zoning, TIF and Certificate of Appropriateness. Do it all at once when comes back, supports it. [Grade: A, I think he got it right!]
Mark Clear doesn’t support referral, he says it assumes developer not being honest, that Gary Peterson’s tooth fairy is in play, developer says it does not exist. Referral is tantamount to killing it. Think carefully.[Grade: F. Most of the discussion has been civil and appropriate, this is condescending and disrespectful and begins that accusations and starts down the slippery slope . . . ]
Bryon Eagon says that this is about the hardship test and even tho some numbers might change, facts of overturning Landmarks won’t change. While does not support referral for those reasons, would overturn Landmarks.[Grade A: I think he sincerely believes this and was well reasoned. I disagree, but that’s ok.]
King says that reminds body that underlying motion does state that won’t give certificate of appropriateness . . . reads language . . . says that they should look at that criteria. Not convinced that developer would go into this process after all that work if the same criteria is at the end of the game today. He says they are capabable of making the decision tonight. Moves on main motion and reject referral. [Grade remains an F, seems primarily concerneda about the developer and not the other interests in the city: neighbors, taxpayers, government]
Marsha Rummel urges support. It’s the lifeblood for the project. Wants to see a win-win, will vote against underlying motion, they don’t meet the standard, thought about it a lot. Kityy Ranking gave an element of what can be done with setbacks, visually related and might involve more negotiation, but if National Guardian Life is a partner in Edgewater then hopes they are committed to make it work. If it goes forward, will relive this tomorrow night. If you give us a direction, the architects will hopefully help get us where we all want to go. [Grade A: She’s against the project as is, but willing to work to make it happen.]
Solomon says that echo Rummel, asks Dunn – yes or no – is Edgewater making money now?
Bob Dunn can’t do it. Not a simple yes or no. Nothing is. May be true. Edgewater today does not generate a return that would be expected for the asset that exists there. [He’s good. I think that means the answer is yes.] Every year it deteriorates and more dollars have to be spent year after year with restraints on occupancy and room rates. [I think he means the answer could be no in the future, but not there yet.[
Solmon asks if he ever thought of running for office. [Grade: A]
Dunn says if he had, this process has terminated those thoughts.[Grade: A]
Solomon says that like Rummel he’s been thinking about this alot, the definition of hardship language that will preclude any and all reasonable use of property – obviously not met. Its a hotel, if nothing happens, and Dunn walks away, it stays a hotel and keeps operating, that is a reasonable use of the property. So can dispense with that. Part two is the serious hardship for the owner, that is the tricky part, Hammes and Dunnn did a good job making their case, they have a strong case and made it difficult. So, he started looking up definitions of what hardship counts as. He reads various definitions. One asks if it is a unconsituttional regulatory taking – does it deny all use? Some talk about “reasonable beneficial use”. Reads some more. One talkes about “not capable of earning a reasonable return.” That is why asked the questions, don’t know how you define that, still in business, been in business for a long time, as far as he can see, no evidence to say not earning a reasonable return. Another one, the one he finds most compelling is that demolition by neglect as a tactic to get around demolition laws and applicants will argue repairs and deferred maintenance creates hardship. That would be a loophole – own neglect shouldn’t be a hardship. Speaks to fact that using that argument can’t be part of the definition of hardship – have to safeguard against the hardship. Wants the project to happen, will get down on knees and beg them not to leave the project, its a beautiful project, its stunning, wants it to happen, but don’t have standing tonight to overturn landmarks, can’t meet the definition of hardship. When May spoke, he disagreed with Rankin that they need a definition of hardship – Rankin says don’t meet it, May says up to us. Solomon feels they are both right. Feels like breaking our own ordinance if overturn this – can’t vote for this tonight, hopes they support the current amendment.[Grade: A. He put some effort into figuring that out and it was clear.]
Joe Clausius, points out he is still here – asks a point of order, are they speaking ot just referral.
May says yes.
Joseph Clausius says that he agrees with Clear and King and after hours of discussion, owners and neighborhood, supporters and opponents they deserve a signal on which way we are going, they should vote on original motion, will still go to Plan and UDC and there will be changes, can’t see delaying it. Not supporting it. [Grade: A. I disagree, but he seems convinced that this is the right way to go.]
Bidar-Sielaff – says that UDC and Plan and then certificate of appropriateness is not the usual process. Talking a lot about process with this development. We should follow the process as it is – this is the usual process. Would not be following own process if referred.[Grade: C. She’s wrong. UDC had this discussion, staff says there is no one way. There is no ordinance that says what order things have to go in. But, again, I think she believes it and made a good honest argument, so she gets a pass.]
Eagon says they should think about tomorrows headlines if they were in a meeting for 10 hours and took no action. He says those headlines would be bad. He wants to show developer, investor, city and community beyond city we are willing to take action and not put it off, lets not continue this that we are unwilling or unable to take action. Too drawn out process, take action. [Grade: C. It kills me every time an alder repeats that the city is hard to work with. Really? If so, make it better. We’ve been trying for years, there have been almost no concrete proposals on how to make that happen. This isn’t a matter of not being willing to take action, it’s a matter of keeping the project alive and not killing it. But hey, I like a guy who has the courage of his convictions and makes a good argument, regardless.]
Chris Schnmidt says have the info to make the decision, and if you don’t then have the guts to kill it, would like to talk about the standards, thinks they are met. Wants to discuss main motion. [I’m gonna give him a pass, he seemed pretty testy – but I’ll chalk it up to the late hour.]
Verveer says he was asked by colleagues not to speak very long. [Hate that tactic, especially since it usually comes from Bruer . . . who you might notice, tends to talk quite a bit himself.] Appreciates what Cnare it trying to do. Says she is not doing it to steal headlines, but because she and several of us can’t get from A to B under the ordinance.[Classy. Good to see alders stand up for others that they are usually not politically aligned with.] So supports referral, no surprise to colleagues because he publicly stated that can’t support the appeal. Several of us can’t meet the hardship test under the ordinances. This motion is helpful, going back to the headlines, sensitive to fact that if they do not grant appeal, the project is dead, tho in reality it is not dead. Trying to support colleagues that are having a hard time. Went to law school, familiar with project and landmarks ordinance because he has represented the Mansion Hill area for 15 years. Reality is that he read read the staff report and have read the ordinance that sat thought the landmarks discussion debate and vote and read the legal memos and examined the record, and he cannot, for one, see how he can find his way through (5)(f) to reach conclusion – can’t get past the last sentence – even if he just agrees that this will grant a serious hardship even tho doesn’t think it is met, but how in the world can they find the hardship is not self created? Can’t find that. May be easy cuz too familiar with project and he has a natural predilection to supporting our ordinances. Hopes all respect ordinances that they took oath to uphold, given the record, doesn’t see how hardship was not self-created, that is the rub, that is the problem. He says he talked to Hammes attorney and can’t get to the final sentence, Hardship created by the owner, clearly the property can be a hotel at the location but not what is proposed. Landmarks Commission went to great pains to grant Certificate of Appropriateness, last motion was to unanimous to give Certificate of Appropriateness if revised design that dealt with gross volume and compatible to visually related. Bottom line is economic hardship, legal requirements of ordinance, can’t see how not self created, trying to help the project along publicly and politically – 3 alders are not here, if this doesn’t pass, they will be under pressure to reconsider, we could be doing it again . . . thinks that given all the factors, and what they can’t consider, the referral is the most appropriate way to go. Supporters think referral is not meritorious – referral will improve project. Value in referral. [And then I missed a bit. Grade: A He clearly is the most informed person on this project and given his knowledge of the project and legal background and ability not to sound like a lawyer, I’m tempted to give him an A+]
Rummel says that this is not the usual process – not a usual project since day one, in recognition of that . . . Rummel stops and asks them to please pay attention as alders are talking . . . in recognition that it is not a typical project she thinks there should be flexibility. She says she brought all her materials for dramatic effect. The project has changed, this referral allows flexibility – trying to be flexible – she said she is partially responsible for it going to Landmarks first cuz that is how she knows to do things, but would like to give it a chance. If force us to vote, headlines will be council says “no”. Council not ready to say “no”, wants to say “yes”, they can get to “yes”, not vote no.[Grade: A. She gets an A for interrupting her colleagues and getting them to be quiet. She gets an A for acknowledging the role she has played in this. She gets an A for continuing to work on the project even tho at this point she would vote no. She gets an A for all the meetings on this issue she has been to. So, she should probably get an A+ like Verveer, but I’m getting the feeling I might be too easy of a grader. What can I say, I’m tired.]
Tim Bruer says votes are in play, or not in play, not sure which. Says he doesn’t want to wait til morning to vote. He says something about a pun, no one seems to understand, there is confusion. Says they need to make a decision tonight, no second chance, didn’t want to get into it, [Ok, so please don’t . . . he’s talking . . . something about history of the Hilton, but I can’t tell you what he’s saying] He says there was a process, we followed it, have the courage to move forward, [!]recognizing other hurdles, no question if it would move forward this evening will have a tremendous amount of input and more chances to fine tune the project. Says he was not a supporter of original project [huh? when was that?], wanted a better project, thinks this gets there, that is debatable. We can disagree til 5:00 [that was some aawful foreshadowing] but reality is there is no project. This is beyond Mr. Dunn. Then he wanders off on another tangent . . . 3 hotels from qualified people and they can’t get financing, its not out there, they are foreclosing on hotels and several on verge of foreclosure here, they are selling for 40 to 60 cents on dollar for 4 star hotels, not in a vacuum, how will he get financing, hit on it over and over, thought he was dreaming, 37M coming into project and that is why financial market will look at it – 5- projects ahead of it, in Madison we want to go out and take a step back and make it look and feel better – blah, blah, blah, history lesson – Walmart, Sam’s Club, John Q Hammonds, blah, blah, blah, Vote how you will, referral violates process. Respects alders in opposition, end of day game is over if passes or not 14 votes, there will be headlines and they will continue and continue and continue- vote your conscience and recognize consequences for generations to come. [FFFFFFFFFFFFFFFF 1. For being incomprehsible and failing to complete his thoughts. 2. For the thinly veiled threats. 3. For buying in to the notion, and repeating, that Madison is hard to deal with. 4. For revisionist history. 5. For not knowing the process after all these years. I could go on . . . but I think it best he take summer classes.]
Clear asks for clarification, if referred, does this appeal come back as is. Same question, same standards, same 14 votes and hopefully not the same testimony and debate.
May – Yes, only concern is that if the project is changed throughout the process those changes won’t be before them. If developer said they wanted new project considered they could deal with it. All legal issues the same, but what if different version of the project? Not sure if referral at that point causes concerns.
Cnare says that has a comment and would like to call the question. No matter how vote there will be a headline. Has nothing to do with your courage, [ZING! I sense someone ready for council leadership!!!!] it is what you think is in best interest of constituents and the city.
Verveer asks a follow up to Clear’s question. Says most of us hope if referral is adopted it will be a better project, modified to be more palatable – can’t they go back to Landmarks Commission and secure a Certificate of Apparopriateness and appeal not necessary.
May says they could reapply, yes. That is another alternative. They could go back to Landmarks as they were begging them to do.
Verveer asks if that would nullify need for appeal?
May says yes.
Schmidt in response to Clear, if project changes sufficiently to look at it differently,then how would that be an appeal? That wouldn’t be the project on the table. Not saying courageous, sometime need to take the chance we have.
ROLL CALL ON REFERRAL
AYE: Rhodes-Conway, Rummel, Solomon, Verveer, Cnare, Kerr, Palm, Bidar-Sielaff
NO: Sanborn, Schmidt, Skimore, Bruer, Clausius, Clear, Eagon, King, Maniaci
ABSENT: Pham-Remmele, Schumacher, Compton
[That was the vote that “killed” the project, if indeed there was on to that effect. There is also mass speculation in the chambers about why the Mayor hasn’t spoken . . . odd. It’s now 3:55.]
CLEAR’S MOTION TO STRIKE 2ND BULLET IN NUMBER 2
Clear strikes second bullet – in 2. Someone must have seconded it. He asks the city attorney a question about the Joint Review Board.
May says not familiar, thinks concern is valid, asks Brasser or Olinger to answer the question.
Dean Brasser says Joint Review Board has to approve changes to the TIF plan and TIF district. They will ask questions about nature of projects proposed, many times they act without specificity related to the projects, but not sure what they would do in this case. They approve tif plans for potential projects they know few details about.
Clear withdraws motion.
SANBORN’S MOTION TO STRIKE THE SAME LANGUAGE
Sanborn was going to offer same amendment for different reason – moves it – Cnare seconds. He says the reason it doesn’t belong is cuz no connection between this and the landmarks decision. They didn’t reject because of time to fix up properties, 1st and 3rd bullet point aren’t relevant either, but tangentially connected, so should remove second bullet point.
Kerr moves separation. Mayor says amendment does that.
ROLL CALL
AYE: Sanborn, Skidmore
NO: Rhodes-Conway, Rummel, Schmidt, Solomon, Verveer, Bidar-Sielaff, Bruer, Clausius, Clear, Cnare, Eagon, Kerr, King, Maniaici, Palm.
ABSENT: Pham-Remmele, Schmuacher, Compton
MAIN MOTION AGAIN
[This is long and rambly, she stopped several times to refocus. That’s not a criticism, it was 4 am, its just an explanation that is might be a little hard to follow, cuz I had a hard time following it and it could have been partially me. But in the end, I give her an A. She tried to make the case by following the law and didn’t veer off too much. I disagree with her position, but, well, she tried hard. And I’m feeling generous because she didn’t insult the neighbors or the Landmarks Commission.]
Maniaci says this is the first and last chance to talk, she muttered something I couldn’t hear. Thanks hundreds of people that contacted her. Says this has been a very lengthy and involved process, there have been many meetings, commends residents on steering committee, since involved, feels developers engaged and worked with neighborhood, tried to bridge the gap in the neighborhood between two sets of neighbors. There a many who like the project, many who are opposed. That opposition does not and should not negate efforts to engage the neighborhood. A lot of people say not a process and they have not felt engaged. She thinks there was a good faith effort by neighborhood and developer. [I get ripped on every time I say something negative about her, apparently I can disagree with everyone except her. For now, I’ll just say, I wonder if she worked on 20 other projects, if she would still say the same thing about this one. I fear for the next project that comes along if she things this was a good process.] Landmarks had a lengthy debate, Stuart is right, we had very different questions before us than we do tonight. Some of comments from colleagues on the Commission understood that, they said they would kick it up to you, understanding that they had a very narrow set of criteria, project met 4 of 5 criteria and only one criteria that they went round and round on, would like to speak to that, was disheartened that majority of her colleagues did not incorporate language of environment in the ordinance that they looked at. Part of what they have to do is look at those standards, thinks FAR is valid measure. We didn’t have a defined metric to use, just had the term – just had point 1 of the 5. Gross volume, what does it mean, how do you compare other buildings? At the end of the day, subjective call of what does gross volume mean to you. Thinks that this is the process that should happen, there is an appeal process that should happen, this body felt important to have an appeal process. [I’m confused about why people feel compelled to make that argument. No on said they couldn’t appeal did they. That is the process. I think people were saying the appeal should not be granted.] Reasoning is different than Landmarks, if we rule against, not negating their decision making process, they had different standards, we have to apply – first look at standards that are a guideline, then do the balancing test, then look at the decision on the hardship. A lot of discussions need to be had around criteria and maybe we are better equipped, maybe not, maybe we are as lacking as Landmarks so we can look at page 1 section 1 and look at general purpose and intent and when trying to figure out the ambiguity of language and lack of metric for gross volume and look at . . . I think I missed some here . . . very important standards and frustrating about Landmarks language, the committee is great, she is frustrated by ordinance and the ordinance failed them, purpose and intent doesn’t see reflected in the rest of the ordinance, these are important statements, she reads them. With council hat, can consider the 7 points to look at gross volume, what does it mean with those points – strengthen economy, property values and other points and so in terms of overall intent . . . but because able to work in these values, we can look at appropriate gross volume, at one point at Landmarks she shaded off area in the circles that was open space and reason she can support the project is the open space and environment in which it sits, not tearing down historic structures, opening up 40s building. All the really great historic structure that invest time and effort in, and will invest in that doesn’t’ negate their historic character at all. Obligation to look at purpose and intent. Then go to the balancing test. Public interest in public preservation balanced with owner and thinks that with the public interest point – argument is that the 1940s building, great public interest in preserving that and opening up the 1940s buidling and re-establishing access to lake and balance that with developer interest and not mutually exclusive, a lot of very good reasons why we should be investing in this porperty and why we should care. Last point then is the hardship. For her, she was happy (mic went out) to see the numbers she had not seen before, [that’s awful that new information was presented that night, they had a whole week to get the info to the council] laid out in stark numbers, to see what project means going forward. Motion of referral and desire for changes is ok, but she is very pragmatic, not numbers we control, we can’t sit in committee and figure out what will work best for us, [This just makes me sad, that is what the committees do and by most accounts, manage to make the projects better.] great hardship for developer and property, look at site itself, look at where you can’t improve – there is the Wisconsin right of way, limitations with lakefront and constraint with existing buildings on the property, if footprint you can build on, can’t tear down 40s building. Not self-imposed hardships. Originally an apartment building, not functional to today’s standards, not a self imposed hardship. Thinks there is a path, would like to stress that are respecting landmarks decision but taking a stab at it ourselves. We understand that you went over it with the standards before you and we are not disagreeing with how you went about this, but we have different standards and we owe it to everyone to look at it with the standards that they have, in the spirit of the ordinance. This is the intent of the ordinance and doesn’t think at all that they feel their historic district is threatened. As came out at . . . .missed a bunch . . . outside of Mansion hill other landmakrs ordinances have more language and we would have had more standards to go after. Better part of quarter century ago the ordinance was written, . . . she lost me here, but I think that was my fault . . . happy to hear from constituents. She quips that she won’t get into percentages, but there are good reasons to go forward. Understands need to feel like they should take a stab at this another day, that they should massage it, see what happens with it. She says she has been involved every day since been in office, this is it. Maybe I’ll be happy cuz more time on hands cuz of how time consuming this has been, don’t fool yourselves, don’t kid yourselves that this is coming forward again, cuz its not. [Well, except for the fact that Schumacher might reconsider. I’m wondering if that is why the supporters all voted against referral, assuming it would be reconsidered? Like I said, A for effort, staying focused, focusing on the laws and not insulting people like she has in the past.]
Bidar-Sielaff starts off by noting it is 4:15, she’s been awake for 24 hours, and she is speaking in her 4th language. She’ll be short, this has been a very difficult process. She is one of the alders who has a historic district, one of 4 [There must be 5, Rummel, Kerr, Verveer, Bidar-Sielaff and Maniaci], very proud of representing the districts, its a unique identity of the city. Please be patient, this hits closer to home than you can imagine, if you think it is hard for you, for the rest of use who live with the districts it is even harder. Would like to thank Landmarks for commitment and dedication, appreciates honest debate. Saddened this has been used to vilify committee and ordinance and historic preservation of city [Extra credit points.]. Role of city commission is not what the debate is about, the city is a model for citizen involvement [More extra credit points.], but that is not what is before us. Attended Landmarks meeting, all 7 hours and heard from many constituents. Respects thoughtful discussion of commissioners and effectiveness of ordinance, Landmarks ordinance gives them appeal the process, its a provision in the ordinance. It is a provision that Hammes elected to exercise, so we have to look at our responsibility, do they have a case under the appeal language? She has spend many hours trying to figure it out. Feel very strongly need to uphold ordinances, they took an oath, she is arriving to decision after thoughtful analysis, says they have a case, but also thinks reasonable to come to a different conclusion and respects those that get somewhere else. The fact that they have a right to different conclusion, both are reasonable. She says that two things is that interest of public in preserving property, clearly that is great, 40s building would be rehabbed and preserved and this is a view of Lake Mendota and a key intersection of important streets. Addition is the debate, if project fails, we don’t know what will happen with future investment or restoration, the property will fall further into neglect and be functionally lost, don’t know, don’t have answer. Present time is what have before her, can’t speculate on future project, 40s building is rehabbed here with the second scenario she finds a hardship. Does feel that physical constraints make a case for hardship. Buying a deteriorating property and wanting to invest is not a self created hardship, investing in buying a property to rehab and preserve historical part of building to get a financially viable flow of money. Not pro or anti landmarks or development – we all are pro landmark and the right kind of development – ok to arrive at different conclusions, many people mentioned this is simple. She wishes it was, would have slept well for a few nights. If you think its simple, she invites you to run for office. And to address the courage comment, we have the courage to have discussions until 4:30 am. She thanks people . . . proud of people who participated in this discussion, including the Landmarks Commission. [She gets an A for following the law! And extra credit for acknowledging the democracy issues.
Schmidt says he’s going to start out with a history lesson. 8 hours ago they overturned a city commission decision, they rejected a towing contract. [I’m disappointed in those who don’t know the difference between a legal regulatory function and routing city business. This isn’t about overturning a commission, this is about following the legal procedure and law.]A lot of talk about what it means to grant an appeal, we have the right to do it if we can back it up. Regardless of decision, doesn’t accept apocalyptic rhetoric. Can’t hold applicant responsible for owner created hardship. They didn’t cause the demolition by neglect – purchasing a property is not create a self created hardship – so he finds a hardship, if want property remodeled need an income stream. What comes to mind is a property in Jefferson, the Gobbler which had a restaurant and hotel, no one came forward, no one bought it at auction, sold pieces of it off, likelihood of that place being demolished because waiting for person on white stallion – we don’t get opportunities like this a lot, don’t see it often, renovation and don’t lose buildings, questions about appearance or size, comfortable with size and appearance. Have case for granting appeal.[Gets an A for following the law and making an effort.}
Sanborn says that when looking at hardship the reasonable use of property too quickly dismissed. If accept that part of what is going on is change in hotel and travel market, then the status quo is untenable and not viable. Its not untenable to say it prevents use of property. He says all you can do is build what we have now, would that be reasonable? Not sure we would. Not dismiss that criteria quickly. On hardship – they should be looking at scale of opportunity costs lost. Not created for some person who was denied ability to remodel their porch – huge economic benefits lost – that is the hardship we should be focused on – he says both conditions met, so questions of height, visually related area and impact on district are not compelling enough. [I’m afraid Sanborn gets a D. He attempted to apply the law, but sort of made it up as he went along. His interpretation seems like too much of a stretch.]
Clear says something about apocalyptic rhetoric – not why approve, but consequences if we don’t. Shows a newspaper clipping from May 13, 1966 that says Mayor Feske scuttles terrace. Instead of Monona Terrace auditorium in Olin park. 31 years later we finally have a Monona Terrace. The article is a long story on procedural motions and process but all that matters and all that anyone remembers it that it didn’t get built. That is all people will remember if we kill the Edgewater tonight. [F. He’s being held back this year. Political expediency and not even mentioning the legal criteria is definitely an F, I’d give him a worse grade, but there is none available.]
Solomon says if vote not tonight, we are not killing this project. Every single person in the room wants the project to happen. We are voting no cuz looking at ordinance and we don’t have standing to overturn the Landmark or because its not ready yet. He told Bob Dunn 5 hours ago, he will get on knees and beg him not to end the project. Only thing to kill the project is if the developer walks away. Everyone wants this to happen, we want the jobs, we want change to worn out facility. No vote is not council killing the project. Makes it hard to make a well reasoned decision. Ends don’t justify the means [Extra credit.], have to think about the means, its not all about process, be honest with ourselves, everyone wants to get to “yes”, “no” vote tonight is not ready yet, wants to get to yes. Implores people to continue moving forward, this is not a kill vote. [Grade: A.]
Kerr says didn’t write notes at 2 am last night. Everyone made arguments about hardship and standards and what not, she listened to them and drew own conclusions, wants to bring out that a lot of thought and what she keeps coming back to – what are the options for the historic properties in Mansion Hill and Edgewater over all, thinking about it and talking to preservationists and it occurs to her that this was the first historic district in the city and it has premier properties, but what hasn’t happened is that the establishment of the district hasn’t encouraged broad preservation, some, but not encouraged broad reinvestment on a historic basis like in Georgetown. Many reasons for it, concluded that can vote yes on the motion, gone back and forth, wants to say that those of you who are “no” votes and feel that your “no” votes – she thinks its ok to vote “no” – listen to your heart – ok for reasonable people to disagree and come to different conclusions, part of the difficulty is that it has been all or nothing, if standards not met, stick to your guns. Feels this is the best hope to encourage broader intent of the district ordinance. Very interested in seeing TIF language in there. [Grade: F. The first thing she did was blow off the ordinances and then applied her own personal criteria. While she could have probably used the laws to make the same argument, she didn’t even try.]
Rummel says that no one broght up the staff report, our own staff, not just unelected commissioners and one alder [Oh, snap!], our staff would said they would find it very difficult to conclude that they could find it met the law. They didn’t have the latest iteration, she talked to staff and would like to see the proposal and talk to colleagues and think about it. But the info came at a late hour and the hardship is because of new construction, if just bought aging property, they could decide to invest, only reason they are hear because they want to build new. Difference between owner and applicant is fundamental. Owner chose not to invest, created a dilemma, she is one of four [or 5?]alders who represent historic districes. Rummel has 3 of the 5, plus a federal landmark district. Ruby Marie block has been through three development proposals to look at a parking lot, but maybe something could happen there but couldn’t meet visually related criteria. This isn’t about stopping all development, just bad development. It was out of scale, if overturn, maybe argue broader intent, gross volume is key and it shows up later and where we wrote more ordinances. Staff say it doesn’t meet criteria, former staff for 30 years can’t find it meets the criteria, she gave them a way to find that. Won’t go there with a referral, but can’t support this, two of neighborhood associations against it, yes some positive, many things to like about it, more needs to be done, not ready yet. [Grade: A. Particularly because she didn’t repeat points others had said, brought up new issues about staff.]
Verveer says that he’s been asked to say “Memorialize” – notes that everyone at the party passed out long ago, noting that of course, they all left Amy’s at the legal time. He points out that lyrics of a song at the holiday party says he uses the phrase “indulge me”, so he asks them to indulge him and put themselves in his shoes where he represents a historic district. Over the years he has assisted constituents and property owners in securing approval from staff for certificates of approval for minor things like window or door, chimney struck by lightening, more often then not staff and commission are accommodating. That is his experience as well. 97% of all matters approved in 30 year tenure of former staff. Says thanks and gives credit to landmarks commission, they do a magnificent job, they are experts, they were under a lot of pressure too. Thinks need to send a strong signal that support Landmarks Commission and ordinance. [Extra credit] They did what they were charged to do, they take the same oath to uphold the laws and they did that. What do I say to next constituent who can’t replace window and take advantage of tax credits when we allow a building grossly too big in the heart of the historic district, there is something wrong with that, its out of whack, out of balance. Someone across the street has to get a window approved but to look out that window at a huge monstrosity across he street. In a perfect world this would be handled differently, this has been extremely unorthodox from top to bottom in all his years of dealing with development projects – you can look out window and see hundreds of millions of dollars of investment that we have allowed to be built, so it gets a little personal when the attacks we received that we are anti-development and all about red tape and can’t put two bricks together and the worst that it is our own colleagues saying that. [Courage points!] Sone people love it when he gets worked up [Me thinks he’s sucking up to the teacher!] Don’t try to peg me as snit-developemnt – almost all residents who contacted him about the project are people who live in those never developments. This project is not there yet, he’ll get on his knees too. Just got a holiday card form Gorman, thanks there is revisionist history about Quisling, he was the alder at the time, its a perfect example of a project that has historic structures and new construction that blends. This is a good example, it is an affordable housing project, he is insulted when people say not a good project. Gorman’s first choice was demolition – alder, neighborhood and Landmarks said no. Still hoping, that we can still get there with the edgewater with Hammes with Dunn. No matter how this turns out, really hopes that better project than we have before us now. [Missed some]. Says there are few of his constituents in Mansion Hill who support it. That is an exceedingly low level of support for the project. Not saying majority oppose it, the ones that live in the neighborhood have not communicated support, frankly its the other way around. Wishes still had time to have more neighborhood meetings, he says there has not been one since the revised plan, he has given dates for when he is available, but they never called a meeting. This process has not met the neighborhood protocol, there is still time to get back on track. He can’t get from point A to point B – doesn’t believe hardship, if even if there is a serious hardship it is not created by ordinance but by the owner, standards not met, given balancing test, even if give them benefit of the doubt, can’t get to final issue that the self crated hardship not the basis – can’t get there, . . . missed some at the end. [Grade: B. He didn’t show his work. He eventually got to the right answer at the end, but there was alot of fluff in between.]
Rhodes-Conway, asks them to bear with her. She owes it to 100s who contacted her to explain reasons why she votes the way she does. She has respect and admiration for Landmarks Commission, agrees with colleagues, hopes that what they do doesn’t weaken their ability to make decisions or shorten their list of duties, doesn’t want to look at paint colors and window frames and types of fences and hopes that we can preserve at least that much of status quo. Thanks brothers and sisters in labor for engaging in process so deeply and for insisting that this developer create family supporting jobs. Thanks everyone who contacted her.
[At this point, the Mayor is the only one on the dais that is not sleeping. The clerk and city attorney are clearly zonked out. Looking around the room, so is the comptroller and Olinger. I don’t blame them at all, this is absurd. And embarrassing for the city. It’s the subject of a whole different post.]
Hopes this is not the last time she hears from so many people, 55% against the project from her district. They all presented thoughtful passionate opinions, compelling arguments on both sides. However, very few addressed issues before us tonight, most on the larger question and project as a whole. Very few helful in making decision, but a few were. Breaks her heart the way this process has run and what this project has done to community and this body. She is so worried about historic districts and landmarks commission, damage is done, hopes not permanent, that damage was done by members of this body and city government, saddens her deeply to think that we threw around rhetoric and words so disrespectful of democracy, hopes we can recover, hopes proud tradition of citizen participation and democracy will continue. Disappointing to see developer show so little respect for our process and get us the info late. Disappointing to hear what colleagues said about what this and how they cast dispersions on those of us who would vote one way or the other, wish could engage in a civil manner, too bad didn’t stay civil. [Good speech – extra credit.] With all that said, the equation before us starts with was landmarks correct, and yes, from their point of view with what they could consider their decisions was the right one, then look at balancing public interest and hardship and – can applicant show hardship – yes, then look at is it self-created or not and she can’t get past that. Most helpful constituent contact came last night at about this point, it said if she couldn’t articulate under our ordinances why she thinks they should overturn, then vote against, and she can’t articulate it, she tried to find the words and reasons and couldn’t.[Grade A+. For following the law and doing it with flair and passion.]
Bruer says . . . oh, who cares . . . randoms words seemingly strung together that must mean something to him . . .but its late and I can’t follow along . . . lots of traffic and debate and emotions, Walgreens, getting gas, labor, random words, poverty, economic opportunity, millions of dollars to put people to work, public good, consequences – know where votes are – be mindful of that, remembered for years, state journal headlines that will get passed around years form now. Blah, blah, blah. [Grade is still an F. He didn’t address the criteria and tried to redirect the discussion to appeal to the fears of not getting re-elected.]
Palm says this is the 11th hour, wishes they had the meeting last week, acknowledges surprising constituent contacts, thought since further out more residents would have been overwhelmingly supportive, surprised by their concerns, more to do with money or tif or process or mayor as opposed to specifics of tonight. Talks about Rhodes-Conway’s question about hardship, says something Solomon said that cemented him, it was an internet quote about how you need to put in law the concept that neglect does not equal hardship, listening to Rankin, we don’t have that in our language, so therefore, it doesn’t clearly say that, if neglect, that is not your hardship, so fine with some hardship, for applicant instead of owner. Heard what Bidar-Sielaff said about respecting Landmarks Commssion. They made and educated and informed decision. Respects them taking clear focus on their charge and not allowing outside influences and unrelated things to apply. Council has a broader charge, look at perspective of district, most of emails said something about doing what is best for Madison. Decide what is best from Madison, but respect differing opinions, one persons conclusion ian’t wrong, difference of opinion, what is best for Madison is to have this project move forward. Vote to appeal. [Grade: C. He addressed the ordinance, but then used other reasoning to get where he wanted to go.]
Cnare notes her aerobics class starts at 5:30, its 5:15. She came here hoping to see a hardship and some mistakes or something, needs to find a way to get better project. She can’t support overturn, when have to make important decision, wise to turn to letter of the law, those are the real rules of the road, may gave good advice and guidance, looks at purpose and intent. I missed something about jeans that don’t fit, would like to make them fit. Lots riding on this project, what does Madison need? She sits on plan commission and what do people talk about – East Washington, Todd drive, never heard anyone talk about Edgewater – we were given a gift horse, but this is not our biggest dreams goals and desires, different if in different area, this detracts from the historic district, the 40s building is good, but dwarfed by new building, we don’t have sufficient info to overturn law. Can’t find hardship. Aerobis in 20 minutes.[Grade A. She did the right thing and thought it through and I respect her for doing that and not just going along with peer pressure.]
Mayor didn’t speak. [Rumor I heard was several council members pulled him aside and yelled at him and told him not to speak and make it worse . . . for which reasons I’m not sure, but they were his allies in the middle and right. But, I repeat, that is just a rumor. I have nothing to back that up. Any which way – its odd he didn’t speak.]
ROLL CALL
Aye: Sanborn, Schmidt, Skidmore, Bidar-Sielaff, Bruer, Clausius, Clear, Eagon, Kerr, King, Maniaci, Palm.
No: Rhodes-Conway, Rummel, Solomon, Verveer, Cnare.
Absent: Schumacher, Compton, Pham-Remmele
REMAINING GRADES
Finally, Skidmore gets a failing grade, he did not participate in class.
Schmacher, Compton and Pham-Remmele have incompletes. Pham-Remmele will get a special pass due to a death in her family.
