Highlights from the Common Council: September 20

Drive-throughs, zoning amendments, complicated financing schemes, and marijuana

The Common Council met on Tuesday, September 20th. A few highlights:

→ Drive-Throughs on North Avenue: Zoning codes change over time. Sometimes things that were previously allowed are no-longer allowed and vice versa. Because it’d be pretty rude, unfair, and inefficient to make property owners modify their buildings every time someone in local government decides to tinker with the zoning code, a municipality will often just grandfather these “non-conforming” uses and move-on. The upside of this is that the property owner doesn’t have to do anything. The downside is that he can’t do anything even if he wants to. Even if it would be beneficial for everyone around him.

Several fast-food restaurants on North Avenue, including McDonald’s, have drive-through windows. Unfortunately, they’re placed in such a way that as the restaurants have gotten busier, cars have started to pile-up in the street as they wait to order a McWhatever. McDonald’s and others would like to move these drive-through windows so that car queues stop curling out into the middle of North Avenue but drive-through windows are a “non-conforming” use, so they can’t change them.

The Common Council agreed to set the date for a public hearing on October 18 to “consider a zoning text amendment to modify the drive-through and drive-in facilities prohibition in the North Avenue Overlay regulations, Chapter 24.05.030”

→ Discussion on Zone Tosa For All amendments:

I.

The Common Council also voted on twelve zoning code amendments recommended by the Zone Tosa for All report (previously discussed here). Ald. Wilke proposed approving all twelve amendments with a single vote but Ald. Makhlouf, seemingly a little drunk on power and perhaps fearing the inevitable hangover, asked to vote individually on several, because he worried they removed the Common Council’s ability to prevent developers from building things:

We are in a situation where there’s no density regulations. We are giving developers a by-right to develop what they want and with unlimited height in that area. We must take back control over this. What we are essentially doing with something like this [...] is we are handing over city keys to developers to develop what they want and [...] in a lot of cases—now we’re going to be asked later on today for a TIF—we’re going to help pay to do it. This is really something where we’re going to have a situation that’s out of control.

No one appeared to agree with him, and all three resolutions passed by a vote of 15-1.

II.

Currently, when property owners apply for things like conditional use permits, rezoning amendments, or planned unit developments they’re required to notify other property owners within 200 ft. Several of the proposed zoning amendments would change this to require notifying all residents (not just property owners) within 300 ft. Ald. Brannin spoke against increasing the required notification radius specifically for conditional use permits, saying “I think that we’re just adding financial burden to new small businesses, and I don’t think it’s worth it." Ald. Lowe made a motion to amend the amendment back to 200 ft. The amendment to the amendment passed 10-6, and the amended amendment itself passed unanimously.

The Common Council then proceeded to approve all of the other proposed zoning code changes.

→ Questions on financing for Boston store property purchase: Newer, nicer, bigger buildings tend to be more valuable and produce more property tax revenue. Designating an area as a Tax Incremental District (TID)¹ is a way for the city to subsidize the development of newer, nicer, bigger buildings by pulling forward some of the future tax revenue they expect such a development will create and using it to entice developers to build the newer, nicer, bigger building in the first place.

TID No. 10 was created in 2015 to help turn an abandoned car dealership into several hundred apartments near the Mayfair Mall. More recently, the city's Community Development Authority (CDA) purchased the old Boston store less than half a mile from TID 10 for $4.1 million dollars. Two resolutions that came before the Common Council on Tuesday were related to this purchase.

The first amended the terms of the Project Plan for TID No. 10 so that the city was allowed to finance a loan for its recent purchase of the Boston store property with revenues from TID 10, and the second authorized the city to actually take out the $6 million loan² itself. This loan would be used to pay back the CDA.

Ald. Makhlouf opposed these resolutions as well:

I must object to the idea of putting the development at Mayfair Complex under a TIF. We have not even been informed as to exactly what’s going to be put out there, and yet we are being requested to put $6 million dollars of taxpayer money to assist in that development. [...] A TIF is supposed to be used for areas that are blighted. Are we really saying that the parking structures and parking lot at Mayfair is a blighted area?

City Attorney Alan Kesner then responded that the city is not actually trying to do the things he thinks they are doing:

Just to clarify Item No. 2 is an amendment to the Project Plan of Tax Incremental District No. 10. It is not actually placing the Boston store in the TIF District; it is simply taking the existing District 10—which is already on the books—and using the revenue generated from District 10 as an expenditure to pay for the bonds—which are Item 8—which is the $6 million dollars in Community Development project bonds. Those are essentially to reimburse the Community Development Authority for the money that the Common Council has already expended to purchase the Boston store.

Ald. Arney emphasized the last point by adding, “There is no situation where we are holding money basically in escrow looking for a developer to give it to. That is not. What's happening. At. All. Just want to be very, very clear.”

I don’t know. While Ald. Makhlouf’s objections may have been a little misinformed, I also wouldn’t describe what the city is doing as simple or particularly clear. It’s actually a little confusing. For instance, while the city might be taking out a $6 million dollar loan to reimburse the CDA for money they already spent to purchase the Boston store property, discussions during the Financial Affairs committee meeting the week before made it very clear that the city would essentially be giving whatever developer ultimately decided to build something there the Boston store property for free.

So while they’re not holding several million dollars in escrow to give to a developer, they are holding a several million dollar building to give to a developer. I admit that these are technically different things. But they are not vastly different things. And they seem like somewhat similar things in the way that Ald. Makhlouf is concerned about.

Also, Ald. Makhlouf made a statement that TIDs are supposed to be for blighted areas (I don’t know whether this is true or not), and then asked whether the city really thought the Boston store property in the middle of the Mayfair Mall complex was a blighted area. City Attorney Kesner answered that the property was not being added to TID No. 10. But last week the city’s Finance Director, John Ruggini, also said that while the Boston Store property wouldn’t be a part of TID 10, he thought it would eventually end up within an entirely new TID. So again, while the things the City Attorney said were true, I don’t think they actually addressed the substance of Ald. Makhlouf's concerns.

I may write more about this next week.

Both items passed unanimously.

→ Common Council says, THCee-ya: Ald. Meindl made an impassioned plea for the committee to reconsider his and Ald. Lowe’s proposal to reduce the fines for marijuana possession in Wauwatosa. Ald. Arney, citing a number of letters she’d received in the last week from community members about the impact of such fines and citations, even made a motion to send the proposal back to the Government Affairs committee rather than rejecting it entirely. But Ald. Lowe wanted this thing passed right now:

Milwaukee didn’t send it back to committee. Madison didn’t send it back to committee. Because leaders lead in a time of uncertainty, and we were elected to lead in our city. […] What we can do is align ourselves with our fellow cities—Milwaukee and Madison—where their common council had NO problem with the suggestion to change the ordinance to $1.

But most of the Common Council remained unmoved. Ald. Fuerst said many of those letters were from people outside the community and the opinions from actual residents were more mixed. Ald. Wilke thought it would be confusing given that marijuana possession is still prohibited by state and federal law. Ald. Morgan thought it sent the wrong message to children. Ald. Tilleson suggested that many of the proposals submitted within the last month could have benefitted from more research and collaboration with the Police Department and other stakeholders.

The motion to send the proposal back to the Government Affairs committee failed, and the proposal was denied by the Common Council.

1. Also referred to as Tax Increment Financing (TIF)

2. Why is the city taking out a loan for $6 million when it purchased the property for $4.1 million? According to discussions during the Financial Affairs committee meeting the week before, it’s to cover various holding costs, like property taxes and utilities, while the city is in possession of the property and before they transfer ownership to another developer.