Highlights from the Common Council: November 1

McDonald's drive-throughs, waiting for Walia, open meeting laws, and more

Community Affairs, October 25

→ Jevons paradox is the name given to William Stanley Jevons’ observation in the mid-19th century that making the coal-fired steam engine more efficient didn’t cause everyone to use less coal but to use more of it than ever before.

Some version of this seemed to motivate Ald. Makhlouf’s skepticism over a proposed ordinance that would remove prohibitions on drive-through facilities at restaurants along North Ave. MacDonald’s, KFC, and Dairy Queen built their drive-throughs long before the prohibition were put into effect and their “non-conforming” drive-through windows were grandfathered in. Unfortunately, while they weren’t forced to change anything when the new rule was imposed, they’re also not allowed to change anything either.

Unfortunately, since the pandemic those restaurants have seen increased traffic and idling cars are now frequently curling into the street and obstructing traffic along North Avenue itself. McDonald’s has requested to make drive-throughs a conditional use, so they can build a higher-volume, re-designed drive-through to prevent backups onto North Avenue.

Ald. Makhlouf:

There is a great deal of emissions as they relate to drive-throughs and idling vehicles in drive-throughs. I know a lot of municipalities have gone to the point of actually banning any new drive throughs from existing. […] So, that’s part of the concern.

Number (2), I don’t know to what degree the modifications are going to impact traffic. It seems to me if we redesign the drive-through so we can handle higher volumes, it’s going to attract even more volume, and we end up in the situation where we have the same kind of thing just on a grander scale at this point in time.

The committee appeared unpersuaded and the ordinance was recommended for approval by a 7-1 vote. It was later adopted unanimously by the Common Council.

→ I previously discussed the trials and tribulations of beleaguered hotel developer Jay Walia in April:

Jay Walia and his development entity—Slinger Cheese, LLC—wanted to build a Staybridge Suites hotel on a (cheese-?)wedge shaped piece of land at 1401 N. Mayfair Rd. He received approval from the Common Council in October, 2019, to rezone the property as a Planned Unit Development (PUD). Plans were submitted to the city for review in February, 2020.

Around this time Mr. Walia started to have serious doubts about whether a hotel for business travelers was really going to be the sure-win he thought it would be, and he filed for a two-year extension on meeting all the previous contingencies for final plan approval. The two-year extension was granted unanimously via Resolution R-21-008 but was itself subject to several additional contingencies:

1. Pay for the Engineering Department to review your plans.

2. If you don’t start building something by June 1, 2021, reseed and turf the vacant lot until you do.

3. Provide a written update to staff within six months of approving the extension.

[…]

But it’s April, 2022, and Mr. Walia never reseeded his field. He’s ready to build his hotel, because people are using planes again, and he submits updated plans to the city planning department for review. But they won’t review them because he doesn’t have an extension because he never completed all the conditions to receive one. Mr. Walia thinks it’s silly to seed and turf the field if he’s just going to tear it up again to build his hotel. He asks for an extension to the extension, so he can start building without going through the entire approval process again.

Ultimately, the Common Council allowed him to forego reseeding the vacant lot so he could get started on construction. But, they told him, if he didn’t begin within 90-days (although this somehow got changed to a 120-day extension before it was approved by the Common Council), he’d definitely need to reseed the lot.

But now it’s August 22, 2022, and Mr. Walia’s lawyer, Brian Randall, sends a letter (pg. 16) to Ald. Wilke, Chair of Community Affairs committee requesting a third extension until December 15, 2022, because they were still waiting on construction permits from the City’s Engineering Department.

And then, because of budget approvals and other priorities, a meeting to consider the request wasn’t scheduled with the Community Affairs committee until October 25 by which time it, Mr. Randall says, it’s too late to start any construction before the ground freezes. So he asks for “one final extension request,” until March 31, 2023, “for what is truly a shovel-ready project” and that they “simply need the final approval and permits from city staff.”

However, the city’s Development Director, Paulette Enders, totally disagrees that this whole thing is ready to go:

When Attorney Randall is stating that it’s shovel ready, there are still—I think—some big milestones that need to be met. We received an email from DSPS¹ on October 20th that stated that they put a hold on their plans. And that had to with the fact that they were missing several items. […] So that the committee knows, DSPS doesn’t typically put holds on projects. They’ll give some type of conditional approval. But there must have been enough missing that they did not give a conditional approval, they put it on hold. We also don’t have an application for a building permit.

After some additional discussion between the committee, Attorney Brian Randall, and city staff about whether and how long to grant an extension for, Committee Chair Ald. Wilke finally concludes:

This specific property in my opinion, there’s nobody knocking down the door to put anything else there. And to see this property able to be redeveloped is a positive for the city even if it is frustrating with the wait.

The Community Affairs committee recommended approval of the extension, and the Common Council approved it unanimously on November 1, 2022.

→ The committee also recommended approval of an ordinance that would allow homeowners to build side-street fences and place AC units closer to their lot lines without a special permit or approval by the Common Council. This change had been discussed previously but was tabled because the committee got very confused about the legal definition of a front-yard versus a side-yard and what the corresponding height restrictions on fences were.

The new proposal eliminated any changes to the restrictions on fence heights, but then a bunch of the alders started talking about them anyway and everyone got confused again. After about ten minutes of discussion, there was some sort of tacit agreement to stop talking about fence height restrictions and deal with it later.

The committee recommended approval of the change by a 7-1 vote and it was adopted unanimously by the Common Council.

Government Affairs, October 25, 2022

→ Julie Alexander, Chair of the Commission for Citizens with Disabilities, presented her annual report. She spoke about the commission’s work with the Wauwatosa School District to better accommodate and provide internship opportunities for individuals with disabilities and special needs and also highlighted the work they’d done with several new developments in the city—including Harlow & Hem and Cornerstone Village—to create affordable housing and employment opportunities for people with disabilities. [In related news, the development at Cornerstone Village has apparently been put on hold due to financing concerns. According to the article in the Milwaukee Journal Sentinel, thy are looking for additional state or federal funds as inflation and higher interest rates have made some of these developments much more expensive and much less lucrative to build with below-market rate rents.]

The Chair also went over the commission’s goals for 2023 include increasing visibility in the community, advocating for affordable housing, forming an Accessible Parks Coalition to improve accessibility at the ARPA-funded parks the city has plans to build over the next several years, and continue to collaborate with the city on municipal code changes to address the needs of the disabled community.

Several alders thanked the commission for their fine work to which Ald. Tilleson added:

I share the same applause as my colleagues gave, not only of the Citizens with Disabilities committee, but specifically the triangulation between that committee, the Senior committee, the Equity and Inclusion committee, and what’s become the Joint Housing Coalition which in my now more than ten years on the council is one of the most productive citizen entities I've seen.

→ City Administrator Jim Archambo presented the city’s Third Quarter Management Report:

• A new enterprise resource planning project is in its last phase. Most of it is meant to improve internal processes within city government, but they do anticipate the roll-out of a 311 platform by the end of the year for individual residences to make property maintenance requests and report potholes. Maybe my neighbor will submit pictures of my unmowed and leaf-strewn front yard.

• Although only 9% of the $24.6 million in American Rescue Plan (ARPA) funds has been spent since the money was allocated earlier in the year, numerous projects are underway to “address COVID-19, equity, infrastructure, mental health, parks, and small businesses.”

• Police recruitment continues, and 17 new officers have been hired since the recruitment project was initiated. Unfortunately, other ones keep retiring so there’s still quite a few vacancies to fill.

• The northern half of 68th street has now been paved. The southern portion will be completed before Thanksgiving. Also: “Contracts have been awarded for […] the city garage floor drain reconstruction, 2022 sanitary sewer improvements, North Avenue water main and local road work, North Avenue from 117th to Mayfair Road, and roof replacements at the Police Department and Fire Station 52.”

• The City’s new strategic plan is nearing completion. City staff recently reviewed a draft of the implementation plan.

• Mr. Archambo expects a request for proposal (RPF) for the city’s revised Comprehensive Plan to go out after the 2023 budget is adopted but before the end of year.

Committee of the Whole, November 1, 2022

City Attorney Alan Kesner gave an informational meeting entitled, “Open Meetings: What Every Common Council Member Needs to Know (and Traps to be Avoided)”

I couldn’t tell if there were any school board members in attendance but considering the number of times they get threatened with lawsuits for violating open meetings laws, I hope the City Attorney at least invited them.

Some highlights:

• It’s not that complicated — “This is when the open meetings law applies: When there’s a meeting. Of a governmental body. That’s it.”

• While emails might be a public record, interactive discussions over email are meetings — “There’s some magic point, and it’s not defined in the law, where that’s not a couple of records, that’s actually a conversation. It’s a meeting.” This reminded me of the other month when School Board Member Mike Meier accused the school board of violating open meetings laws for collectively attaching comments to a Google Doc. The board’s lawyer called this a “novel interpretation” and it seemed like a stretch to me, but the statement above makes me think Mr. Meier’s complaint has slightly more merit.

• Don’t whisper in meetings, or surreptitiously text one another either — “Madison Common Council when they got iPads a few years ago […] were starting to send messages. And they got caught. They got their hand slapped for doing that. […] Somebody did a public records request [and] found the messages between the iPads during the meetings.” Classic. Like catching school children passing notes in class.

• It is your job to respond to public records requests — “Everything that deals with the business, all the emails that you have that you send back and forth, all the papers you get [with some exceptions] are records.”

• The requester doesn’t need to submit their request in writing, they don’t need to provide their name, and they don’t have to tell you why they want it. And — “Although they must be reasonably specific, magic words are not required.” If someone says they’re making some request under the Freedom of Information Act, just because Wisconsin doesn’t have a Freedom of Information Act doesn’t mean you get to deny the request. Don’t get cute.

• You will go to jail — “If you destroy, damage, remove, or conceal public records with the intent to injure, defraud or alter or falsify public records.”

• And there are other consequences too, people! — “Any member who knowingly attends a meeting that’s in violation of the open meetings rule could forfeit without reimbursement —we can’t reimburse you *[shakes finger]*—between $25 and $300.”

• Records requests are usually free unless it’s a real pain in the ass — “Like the one where we had [records requests concerning] employees that had been retired for 30 years. Those were in some boxes in some archives in the basement in the back of something and that took a little time and money.”

But what I want to know is whether public record requests are themselves public records. Like, who’s the person requesting documents about employees from 30 years ago? What did they want? Can I find out?

1. The Department of Safety and Professional Services is Wisconsin’s state licensing bureau and apparently requires you to submit building plans for their review if they’re for a large commercial structure. They have 1.5 stars across 328 reviews on Google. They are apparently ineffective at almost everything except pissing people off: