Drew Tower Slouches toward Tosa
Board of Zoning Appeals affirms Design Review Board's approval of Drew Tower construction
I. Some Previous Coverage:
March 23 - John "Johnny V" Vassallo to build 28-story middle finger in Wauwatosa
April 14 - Response to Drew Tower development
May 5 - Board of Zoning Appeals asks DRB to justify Drew Tower approval
May 7 - Bi-weekly roundup: Drew Tower project goes back to Board of Zoning Appeals
To review, the original Drew Tower proposal was a 20-story building with over 300 apartments. Because the apartment density exceeded zoning limitations, the developer, John Vassallo (“Johnny V!”), filed for a zoning amendment which the Common Council denied in February, 2021, after strong community opposition. Too large, they said.
In November, he came back with an even taller building that did not exceed zoning limitations thereby avoiding the amendment process where his previous proposal had floundered, and after several meetings with the Design Review Board (DRB) where the public suggested the whole thing be scrapped and the DRB suggested some minor landscaping changes, pavers rather than concrete for the pedestrian walkways, and a 6-story parking structure that was just a little less brutalist, they approved the preliminary plans in January, 2022.
In response, residential neighbors near the proposed development formed Underwood Neighbors United (UNU), hired a lawyer, and asked the DRB to review its decision in accordance with the city’s appeals process. In March, the DRB confirmed that, Yes, we actually did approve this. The UNU lawyer, John Cincotta (JC), then filed an appeal, and it went before the Board of Zoning Appeals (BOA) in April. BOA asked the DRB to provide written findings of fact to justify their original decision, the DRB provided them, the BOA listened to statements from the public and the lawyers for each side, and then decided on June 1 that, Yeah, we think the DRB made the right decision.
II. The June 1 Meeting:
So what happened?
On June 1, the Board of Zoning Appeals allotted each lawyer 30 minutes to speak. Each lawyer said that they would be quick and wouldn’t need anywhere near that much time. Each lawyer then proceeded to speak for 30 minutes.
During the meeting on June 1, the conversation mostly revolved around two questions:
A procedural question about whether the DRB handled the appeal properly by allowing public comment and evaluating evidence about depreciated property values, and
A substantive question about whether construction of the tower will in fact reduce the value of surrounding properties.
I’ll briefly paraphrase each side’s arguments, provide a few thoughts, and then talk about how the BOA made their decision.
John Cincotta (JC), attorney for Underwood Neighbors United (UNU):
The DRB has not considered the effect of Drew Tower on neighboring property values and City Staff and elected officials have placed their thumb on the scales in favor of the developer. How, you ask? Well:
The Mayor sent an email to members of the DRB in December and said the “board only reviews the exterior design, not the use itself. It has no authority to stop the project from moving forward.” This is, like, totally incorrect.
The City Attorney provided a draft Finding of Facts to the DRB that offered no facts and simply restated the DRB’s conclusions. The DRB signed this and called it good.
The DRB has been pressured to approve the design because the City fears being sued by the developer and thinks the developer would surely win. [My note: I’m not sure who he thought was doing this pressuring, but he may have been referring to an individual during the public comment period of the December 16, 2021, DRB meeting who made almost exactly this statement. However, I don’t think this person was an employee of the City.]
And the DRB is guilty of much more:
On January 20 when the proposal was approved, I and other residents were not allowed to speak while the developer was.
The DRB didn’t consider all the evidence for reduced property values near the proposed development. There was a Manual for members of the DRB with guidelines on how to do this, and they didn’t follow it.
The DRB’s March 3 “review” of their decision involved no review at all and was little more than a rubber stamp.
And, just in general, members of the DRB seemed kind of annoyed and dismissive of the whole appeals process, and the City Attorney provided poor counsel on what their actual responsibilities were.
About 75 minutes in, JC, rebutting some of BR’s arguments (which I’ll get to next), ends with a final cri de cœur:
To assert that the neighbors are trying to kill a deal is totally outrageous. You know what kills deals? Misrepresenting the standard by which the DRB should have been operating in November. Okay? That’s what kills deals and creates litigation. So misrepresent the fact that they can’t even consider the impact [on property values], and then an attorney gets involved and shows they can consider it, but you know what? We’re anchored to our position, so we’re not going to listen to Cincotta, and we’re just going to keep rubber stamping this thing because we’re annoyed with everybody…Sorry to editorialize. […] The neighbors, as it must be obvious, are very concerned, and that concern and frustration has come out in my comments just this moment, and I apologize for that frustration. But the citizens need people to care. And it’s hard, and it takes time.
Brian Randall, attorney for John Vassallo:
Look, there was a DRB meeting in November, a meeting in December, a meeting in January. Two of those had significant public comment. There was an appeal to the Board of Appeals that also took public comment. No due process? There was so much due process.
I agree, the DRB definitely should look at evidence of substantial depreciation. Unfortunately, the only evidence provided was from our experts who said there wouldn’t be any. I can’t help if the board finds an actual market analysis from a real estate assessment professional more persuasive than some email from a neighbor who says she spoke to a realtor friend and that friend definitely thinks the house would be worth less with a big tower next to it.
A rubber stamp? The DRB requested so many modifications to the original design. They asked for more trees, bigger trees, prettier trees. Heck, they got architects to put trees on the roof. Sure, there’s a 70-foot parking structure wall 30 feet from a single-family home, but did I mention there’s trees? On the roof!
What you call a rubber stamp, I call reasonably-abbreviated-deliberation, especially given the lack of new information for the board to consider. Deliberation that, by the way, involved vigorous dissent from some members and a non-unanimous approval. What you call annoyed board members I call an insult to these fine, upstanding volunteers who lend their considerable expertise to what is the seemingly thankless task of looking at buildings and adding trees to them.
Yes, it’s near a residential neighborhood, but it’s also next to, you know, a busy intersection with 20 lanes of traffic and tens of thousands of cars whizzing by every day. It makes sense to put tall buildings at very busy intersections.
The DRB manual you keep mentioning has two problems—one it’s not a legal document, it’s a set of guidelines, and two, it makes reference to sections of the municipal code as justification for its guidelines that aren’t actually in the municipal code any longer. It’s out-of-date, and if the guidelines conflict with the law, the law takes precedence.
III. Thoughts
The essence of an adversarial judicial system is that each side presents evidence that reflects positively on their client and attempts to cast doubt on evidence that does not. Lawyers are not so much interested in the truth, although they should stick to the facts, but in presenting the best possible case for their client. It is up to a judge, or jury, or members of the Board of Zoning Appeals to peer closely into the mass of evidence and argument and hopefully find something approximating reality amongst a thicket of competing claims.
But lawyers can be tricky. They do not simply respond to an opposing lawyer’s claims in a straightforward way but may also attempt to shift your frame of reference, anchor you on different and sometimes irrelevant details, or complicate the meaning of common words.
For example, the DRB is supposed to consider whether a new building will cause a substantial depreciation in the value of neighboring buildings. Yet the meaning of the word substantial isn’t defined anywhere. During JC’s arguments, he would tend to substitute the term substantial depreciation with words like impaired or diminished, suggesting that any decrease in the value of a neighboring property was reason to deny the proposal. Which is not quite what the law says. At one point, a board members asks Cincotta what his definition of substantial is:
The best I can say is it needs to be something that is not trivial. […] Substantial. Substance. There’s some substance to the evidence. It’s not quantifiable in a continuum of 10% or three-quarters or something to that effect.
He said more after this, but none of it really helped me understand what the word substantial means, and in fact made me more confused than before.
Another example occurs when JC describes the DRB as annoyed by the appeal and simply rubber stamping the decision because they don’t want to deal with it. BR claims that’s preposterous. Some of the board members dissented, he says. There were multiple meetings with public comment, lots of back and forth on the design. And they’d never handled an appeal like this before, so give them a break. It was anything but a rubber stamp.
And I think it’s important to note that it’s perfectly possible to have a rigorous back-and-forth with the developer before approving their project and also for members of the board to feel annoyed that their judgment was questioned and to do the bare minimum in revisiting the basis for their decision. And an individual board member can dissent while still giving the impression that “the board” wasn’t interested in listening by shouting the dissenter down, refusing to engage with the substance of his criticisms, and overriding him.
Which I feel is kind of what happened.
After the DRB approved the Drew Tower proposal on January 20, the UNU asked for a “review” of their decision1. The law is, admittedly, vague about what constitutes a review, but I feel the following exchange, which accounted for the majority of the board’s 12-minute long “review,” demonstrates an extremely implausible interpretation of that sentence:
Board Member Robert Kennedy: There is no input from anyone else but the board on this item?
Chair Dennis Scherr: From the board?
Kennedy: Correct.
Scherr: Well, if there are no other question—
Kennedy: Just a minute, no, there are more questions.
Scherr: From the board?
Kennedy: Yeah.
Scherr: Okay.
Kennedy: Were you about to take the vote here?
Scherr: If nobody else had a question, yes.
Kennedy: I have no questions necessarily. I think I have some comments. I think we were kind of railroaded into the previous vote. I don’t know why. But it was a similar sort of thing. Are there any questions? Okay, let’s vote. That didn’t ring well then, and it’s not ringing well tonight either. [Gives his reasons for opposing the project.]
Member Edward Haydin: Robert, you’ve already voted against the project, so that’s understood. We’re affirming the vote here. 4-2.
Kennedy: So, you’re saying we’re going to agree that the vote was 4-2?
Scherr: Right, that’s what’s being asked. This is not a revisit or an appeal. They’re asking for, uhh, if our vote stands on 4-2.
Kennedy: [Long pause] That’s crazy. Who’s asking that?
Scherr: Whoever sent—Karl?
Haydin: This is a review of the decision. This isn’t a re-review of the project. There’s other recourse here.
Scherr: Right. All they’re asking for is a review of our decision.
Board Member Karl Schreiber: [Reading the direction to the DRB for this review…] The nature and the scope of this review is at the discretion of the design review board […] Mr. Haydin’s motion is valid to affirm the decision of January 20. In it’s brevity, that is a valid motion. And if that’s the direction the board chooses to take, that will suffice.
Kennedy: So the question is, is the board willing to let this go with no discussion on the original motion that we had? I think we should open this up for wider discussion.
Scherr: We already made a vote though.
Kennedy: We already made a vote that’s right, Dennis. But…the vote was 4-2. We all know that. What are we affirming tonight?
Scherr: The 4-2—
Kennedy: It’s already been turned in.
Scherr: Correct. And that’s what was asked of this board for tonight, is just to affirm that was the vote.
Kennedy: So we turn in a vote, and a month later they’re going to come and say, Oh by the way was that the vote? Come on. No one is looking for that.
Scherr: This is not for an appeal. It’s not what’s being asked. There’s other avenues for that.
I think if you feel like what you’re doing is stupid or doesn’t make any sense, it probably is stupid and doesn’t make any sense. And it’s probably the case that the people who passed the law didn’t intend for you to do something stupid that makes no sense. I think the right response to this feeling is not to do it anyway and claim ignorance because you’d never done something like this before or because the law was unclear, but to actually do something reasonable and not stupid instead.
It’s hard for me to believe that everyone involved here didn’t recognize, at some level, the absurdity of what they were engaging in, especially after it was explicitly pointed out to them.
Also, you get comments like this during the DRB’s May 5 meeting where they were providing a written finding of fact to the BOA:
Quite honestly, I think we’ve gone through this quite extensively. The applicant has been here 3 times, we’ve offered opinions, we’ve offered suggestions, they’ve met those suggestions. And here we are again, Al[an Kesner, City Attorney], to make sure that this position is solid. So, what more do you need from the Design Review Board to make sure that a DRB or zoning appeals process has enough information to make their position known?
And:
So, Al[an Kesner, City Attorney], will you advise us on how we can move forward to make sure that [the BOA] has their opinions from the Design Review Board to make what we consider a by-right development available to the developer?”
Or this one, from the same DRB member, before the public comment period of their December 16, 2021, meeting:
Can we keep comments to two minutes? Because usually these things have recurring themes. Maybe there’s a timer put on this so we can get moving. We’ve read a lot of the emails that have come through. Re-reading the emails isn’t gonna help anybody’s cause here. They do have privy to speak here, but I don’t think we need to be here all night for this.
I don’t know. He seems…impatient? Maybe even annoyed?
IV. The BOA’s Decision
In emails sent to the Board of Zoning Appeals before their most recent meeting, one resident said, “I respect following laws and being a contributing member of society. I ask the same in return. […] Please hear me.” Another asked, “How are we to trust our government if due process is not followed?”
Trust between the public and its elected and unelected leaders requires not only that those leaders have good judgment but also that such judgment is observable and transparent to the people who are supposed to trust you. You will never satisfy everyone, but you can make a good-faith effort to articulate the reasons for what you’re doing, follow not simply the letter of the law but its spirit, and try not to be too contemptuous of the public that you serve. If someone questions your decision, you can respond earnestly to their concerns rather than interpret your responsibilities in obviously absurd ways in order to save time or because you are annoyed.
After the Board of Zoning Appeals heard from each attorney, board members asked a few questions related to the procedural issues that JC had focused on, and then began their deliberations. They concluded that Attorney Cincotta and Underwood Neighbors United hadn’t provided persuasive evidence of substantially depreciated property values especially in light of the expert analysis provided by the developer that found no effect. They also felt, after some research by the City Attorney, that the law outlining the DRB’s duties in considering the proposal were relatively clear, and that the DRB had complied with that law in their decision.
I think the Board of Zoning Appeals was reasonable and careful in its deliberations. Attorney Cincotta seemed to think so too. He thanked them and said as much as the meeting ended. But I think the DRB could have done a little better. In terms of consequences, it seems reasonable to think that Drew Tower is not going to have a large impact on surrounding property values2, and the numerous changes to the design of the building that the DRB asked for will probably make it look better.
But a “review” of your decision that consists entirely of a motion that states your previous motion passed 4-2? Come on…
Section 15.10.050.c of the City’s ordinances and says “Any person who is aggrieved may file a request for review before the design review board that issued the decision.”
I talk a little bit more about why here: Board of Zoning Appeals asks DRB to justify Drew Tower approval