Response to Drew Tower development
Some alders look to institute height restrictions, others to raise threshold for protest petitions
I.
Over the last several months, John “Johnny V” Vassallo’s Drew Tower development at the intersection of Bluemound and Highway 100 has surfaced concerns both among the public and among elected officials over at least two aspects of the City’s municipal code:
Zoning laws for commercial lots, including the parcels of land on which Drew Tower will be built, that allow essentially unlimited building height, and
Related but distinct laws that enable a small minority of neighbors who oppose a nearby development to create large obstacles to its approval.
The first iteration of John Vassallo’s Drew Tower development proposal was a 20 to 25-story residential-only tower which required an amendment to the parcel’s current zoning so that he could exceed density limitations. As I noted previously:
While people seemed to mostly be upset about the building’s height, the reason Johnny V had to get common council approval was because he wanted to exceed the density requirements of his current zoning. […]
He did tell them that if they denied his original proposal, he would need to find something to build that fit within the zoning requirements and that it might be taller, and I’m not sure if maybe they didn’t believe him, thought they would be able to block it anyway, or didn’t understand the implications of what he was telling them.
Because the original design of Drew Tower required rezoning the land underneath it, nearby residents are allowed by law to file what’s called a “protest petition” to dispute the rezoning. If owners of at least 20% of the adjacent land1 sign the petition, then the zoning amendment requires the approval of a supermajority of 75% of all alders on the Common Council rather than a simple majority of all alders present when the vote is taken. In the case of the Drew Tower development, neighbors met the 20% threshold for a valid protest petition2, those alders on the Common Council who approved the rezoning did not achieve a supermajority, and the zoning amendement was denied.
However, John Vassallo simply came back with a less dense but taller building that did not require rezoning, did not need Common Council approval at all, and could not be protested by neighbors in the same way.
There have so far been two responses to this series of events, each pulling in opposite directions.
II.
In a February 8, 2022 Community Affairs meeting, Ald. Welch proposed what she considered to be the first of a 3-phase process to prevent similarly large buildings from being constructed close to residential neighborhoods without the ability for the Common Council to have a say.
Phase 1, and the substance of her current proposal, would limit C2-zoned properties to a height of 50 ft. She offered this 50 ft. restriction as a starting point for what she hoped would be further discussion and negotiation but felt that something around this level would protect neighborhoods from 28-story (and I suppose much shorter) monstrosities like Drew Tower that were not envisioned in the City’s 2008 Comprehensive Plan.
Phase 2 would then look more closely at all C2-zoned parcels across the city to see which of those might be rezoned as C1. Whereas C2 zoning “accommodates a broad range of business and commercial uses, often in the physical form of shopping centers, large-format retail and other destination-oriented uses in which a large percentage of customers will arrive by automobile,” C1 zoning is “primarily intended to accommodate mixed-use development and small-scale, neighborhood-serving retail and service uses in pedestrian-oriented storefront buildings.” C1 zoning also has an even more restrictive building height limit of 40 ft.
Phase 3 would be the creation of a new C3 Zoning designation that would allow greater density development than C1 or C2 and would be applied to a small subset of currently C2-zoned properties including, potentially, those along Mayfair Road or Burleigh Street.
My gestalt impression of the Common Council and City Staff’s response to her proposal was that while almost everyone seemed amenable to making some type of change to commercial zoning restrictions, there was almost no appetite to do anything right away.
The City’s Development Director, Paulette Enders, mentioned that they were currently down one of three planners that are normally employed by the City and that it would take anywhere from several months to a year to generate a good recommendation for how exactly such a zoning change might be executed. Staff would need to generate a Request for Proposal (RFP) and solicit bids for a consultant to look more closely at implications of the zoning change and determine best practices from other comparable cities. They would also need to allocate funding to pay the $100,000 to $200,000 she expects it will cost.
City Adminstrator Jim Archambo said such a change:
Would affect 496 properties and about 18-20% of the City’s tax base, and that those 496 taxpayers should be individually notified so they can provide their input since the Common Council is proposing to further restrict what they are allowed to do with property they own.
That retroactively placing a 50 ft. height restriction where none previously existed would make a number of those properties “non-conforming” and potentially more difficult for owners to insure or take out loans against.
That overly restrictive zoning can invite the ire of state-level government. Many states have begun to take a more active role in pre-empting municipal laws that make it difficult to build homes especially given the current housing shortage,
And that it may put some current development proposals in a state of uncertainty. He specifically mentioned the Mayfair Mall and its multi-year effort to redevelop the Boston Store.
The City Administrator ultimately suggested incorporating these types of zoning changes into the next revision of the City’s Comprehensive Plan that is occuring in the next several years. While Ald. Byrne, Moldenhour, Wilke, and Dubinski did not want to take several years, they also expressed concern about taking premature action and wanted more research to understand potential implications.
While these objections seemed reasonable to me, and I am mostly persuaded by them, a more cynical person might note that calls for “additional study” or “greater discussion” are often ways for people who are opposed to doing something to avoid doing something under the guise of appearing to do something. It’s hard to tell to what extent that might be the case here. And of course, Ald. Welch would like to do something as soon as possible lest 28-story buildings begin popping-up next to single-family homes all over the city.
Her sense of alarm didn’t seem warranted to me as even the map she presented during her proposal showed such properties to be relatively limited. However, I take her point that there’s currently nothing preventing similar buildings from being built and some of them definitely abut residential neighborhoods.
Ultimately, Ald. Welch’s motion was placed on hold, and the Community Affairs committee agreed that within the next several months staff would return with answers to four questions:
Are there C2-zoned properties that could easily be rezoned to C1?
How many C2 properties are directly adjacent to residential parcels?
Would a 15-story height limit [My note: I’m not sure if she meant a 50 ft. height limit as was discussed. No one during these conversations mentioned a 15-story limit.] for C2 zoning create any non-compliant properties and what would the financial impact be for property owners and the City’s tax revenue?
Are there any best practices from neighboring communities regarding the inclusion of height limits in C2-zoned properties?
The alders also agreed to call a Committee of the Whole meeting with the newly elected alders and hold a workshop with staff to discuss these revisions within the next 12 months.
III.
In contrast to proposed zoning restrictions that would make it more difficult for developers to construct large buildings, the Common Council also debated and ultimately approved changes to the municipal code governing protest petitions by raising the threshold for a valid protest petition and reducing the supermajority requirements for approval. The ultimate consequence is that it is now easier to get zoning amendements approved.
To provide some background, many states have provisions for what are called a protest petitions3 which City Attorney Alan Kesner described in a memo provided prior to a November 9, 2021 Community Affairs meeting:
Historically, Wisconsin law, consistent with zoning laws in many states, has allowed owners or neighbors of land which is proposed for rezoning to object to such rezoning by filing a protest petition, which forces any such map amendment to be passed by a 3/4 vote of the governing body. Wauwatosa has also adopted this protest petition provision into the local zoning code under its own legal authority."
However, the memo continues, the state of Wisconsin eliminated their requirement that municipalities incorporate such protest petitions in their local laws in 2019, because:
This process has been used in the past to limit or stop redevelopment when it is objectionable to neighbors. It has been viewed as a limitation to new and novel uses of land, and sometimes its use has been seen to have a more negative impact by allowing such persons to object based upon the identity of the applicant for such changes. Experts in the field of housing equity and development of affordable housing have cited provisions such as the one in our code as barriers to affordable housing and equitable housing generally.
Discussions on removing or changing the requirements for a protest petition occurred in several committee meetings between November and December of 2021. Ald. Kofroth—who proposed the change—essentially offered four arguments for the change:
It’s undemocratic that a small minority of neighbors can then empower a minority of common council members to prevent someone from building on their property.
It harms the attractiveness of the City to developers, especially relative to neighboring municipalities like Brookfield,
It provides cover for discrimination by allowing neighbors to prevent the development of affordable housing and other controversial uses near their homes, and
Once a proposed development is blocked via protest petition, those properties develop a stigma that makes future development on those properties less likely. As examples, he mentions some land owned by the Women’s Club that they tried to develop that was blocked by a protest petition and has been empty for the last seven years. He also mentioned a proposal to build a restaurant on the site of a shuttered gas station in the 6th District that was blocked through a protest petition and that has remained undeveloped since then. [My note: I think he might be referring to this story.]
The half-dozen or so residents that spoke during a period of public comment were universally opposed to changing the requirements for a protest petition. Ald. Welch was also opposed:
I can’t be more against this. You know, I find it really interesting that there’s so much attention over the years paid to property owner rights and the rights of people to protect the value of their property and yet as soon as those rights are exercised in a few cases to protect neighborhoods from excessive development, and by that I mean a 20-story apartment building proposed within 10 to 20 ft. of a single family home, something the city shouldn’t have even considered, that neighborhood steps up to protect their rights, to protect their neighborhood. And this is the one tool they have, and suddenly when that interferes with a preferred development, it becomes a problem and there has been ongoing retaliation against the neighbors in that case.
The motion eventually made it’s way to the Community Affairs committe on January 25 where they recommended approving the following modification to the law:
The super majority required to approve a zoning amendment after a valid protest petition is filed will be 60% of attending alders rather than 75% of all alders.
A valid protest petition requires signatures from owners of at least 50% of adjacent land rather than 20%.
The change was approved by the Common Council on February 1 by a vote of 9-7.
IV.
I think these issues are complex, and I’m currently traveling so I don’t have well-organized thoughts on this, but I will make one note regarding the proposed changes to C2 zoning:
Land reform has been deeply consequential throughout Western and world history. Property rights have been at the center of civil wars and the foundation of new governments. While I do not think that imposing height restrictions on commercial property is going to change the world or turn Wauwatosa into a warzone, I do think such changes should be treated with a certain amount of gravity and respect for the rights and principles involved.
A property where you can only build something that’s 50 feet tall is going to be worth less than one where you can build something that’s 100 feet tall. Ald. Welch’s proposal to restrict the height of buildings on C2-zoned properties will make those properties worth less. But nowhere in her presentation did she mention compensating the property owners for this. People buy property with certain expectations about what they can do with it, and knowing that you can build a 28-story tower is worth something even if you don’t currently have plans to do so. It is the same reason homeowners worry about the tire factory or the lead smelting plant or the really tall builing going up next door. It reduces the value of their residence to them because now they must smell burning rubber or breath in toxic fumes or sit in the shadow of a very tall building while living in it, and it reduces the value of their residence to a prospective buyer for the same reason.
I think many recognize the value of property rights. And this value should have less to do with whether the owners of that property are developers or homeowners than with the more basic principle that if you buy something and the law says you are allowed to do x, y, and z with it, you should actually be able to do x, y, and z with it. And there should be a very high bar to someone coming by later and telling you, “No, actually you can only do x and y with it now. Sorry.”
Not 20% of owners but owners of 20% of the adjacent land. So, for example, if there were 20 nearby owners but two of them collectively owned 25% of the nearby land, then the protest petition would only require their signatures.
My understanding from a comment by Mayor McBride during one of the relevant Community Affairs meetings was that 100% of neighboring landowners signed the petition.
During one discussion, Ald. Welch said that 21 states have such provisions.