There are three separate things going on at this point: 1) The Town of Madison is appealing the zoning decision that C-1 zoning is appropriate for the day center, and perhaps that is was zoned R-4. The hearing at the Board of Adjustment isn’t until August 28th. (can’t confirm, but that is what I was told by Town of Madison staff) 2) 14 conditions of approval for the building permit still need to be met, including parking etc 3) Among the conditions, the Town of Madison and Dane County have to sign an agreement about what services Dane County will be paying for – public works mostly, police and fire too?
I attended the meeting last night to get the information for myself because its been hard to find information and figure out what is going on. There were two items on the agenda for the Town Board meeting. While this is being talked about as a done deal, I think it is far from it, and there is no way it is opening on November 1.
APPEAL ZONING DECISION
Two Town Attorneys explain the resolution, there is a little discussion and then the vote is unanimous (3 people) to appeal to the Board of Adjustments. That meeting won’t be until August 28th, so that substantially sets back the plans to get the day center up and running by December 1.
Attorney Richard Nording says the issue is whether the county can or should locate a day resource center at 1490 Martin St. There is a significant question about if a facility like that is permitted under C-1 zoning. A strong argument can be made it is not a permitted use, that it is a governmental use and therefore it is a conditional use and the Town would have a greater say over if it should be located there and what kind of conditions would need to be met. The purpose of the resolution is to challenge the determination by the county zoning administrator. A secondary or second primary issue is that it is not clear under the history of the property is in fact zoned C-1 currently. The county zoning map showed R-4 prior to the county looking into it. The town would have veto power under R-4 zoning and the neighbors would have more influence. If the resolution is adopted, they would file an appeal of the zoning administrator’s determination and challenge if it is a permitted use at this location. The resolution also authorizes the attorneys to look into an appeal by one or more property owners in the vicinity. Either in conjunction or as a companion. They will determine that in the next few days, the would not try to get an army of nearby property owners, but any owner who feels aggrieved could have their point of view expressed whether they are parties or not. It’s a question about the types of arguments they could make and if it ends up in court, the case is more attractive from the standpoint of an independent judge – who might see it as a spat between two governments, but instead that there are property owners with interests at stake. Finally he says it will be easy for some to characterize an appeal as a lack of empathy for the plight of the homeless or NIMBY (Not in My Back Yard) point of view, he says there are some uses that need to be somewhere and not welcome by neighbors in any location, then it won’t get much sympathy, but this is potentially much more than that, because the info he has shows that there are a number of serious issues associated with a day resource center at 1490 Martin St. This might be a poor or inadequate site, questions about sufficient water, insufficient transportation, is this the right location in terms of substantial residential character even if it is zoned C-1, does it fit the county needs longer term, if expansion for use by more people is in the offing, this might be inade1ate for the site they might eventually need. This and others are questions about the suitability of this site and it draws into question not just if it is unsuitable from the standpoint of neighbors, but also the homeless, will they be properly and adequately served at this location. He would encourage the Town Board to have them look into it further with Dane County and City of Madison about if this is a good location regardless of zoning questions. John and him recommend the resolution be approved by the board, they made a last minute change in the 5th whereas clause, he reads the whole resolution:
Whereas, 1490 Martin Street, Town of Madison, is apparently zoned C-1; and
Whereas, Dane County intends to purchase and use this property as a Day Resource Center as a Homeless Shelter; and
Whereas, Hans Hilbert, Dane County Assistant Zoning Administrator issued a formal determination on June 24th 2014 that this anticipated homeless shelter is a permitted use which may be lawfully established at 1490 Martin St.; and
Whereas, an aggrieved party to said decision may file within 30 days a notice of appeal with the Dane County Zoning Division in accordance with the rules of the Dane County Board of Adjustment; and
Whereas, the Town Board does not agree with the Assistant Zoning Administrator’s decision and the Town Board believes that said shelter is not a permitted use at 1490 Martin St.
Now, therefore be it resolved, that the Town Board authorizes its attorneys John M. Gerlach and Richard K. Nording to file on behalf of the Town Board and the Town of Madison the appropriate appeal of the June 24th 2014 Assistant Zoning Administrator’s permitted use determination with the Dane County Zoning Division and or the Dane County Board of Adjustment in the form and content they deem appropriate. The Town Board further authorizes its attorneys to file suit or take other legal action as they deem necessary to protect the Town’s interest in challenging the Assistant Zoning Administrator’s determination.
(He explains the last line was added so that if something happens with very short notice that require going to court, that they would be preauthorized to do that, they would not do that without making sure the Town Board knew about it and was ok with it, but they don’t want to have to wait for further formal approvals if time would be of the essence.)
Be it further resolved that, Chairperson James Campbell is authorized to sign said appeal on behalf of the Town Board and the Town of Madison if deemed necessary by the Town’s attorneys; and
Be it further resolved that, the Town’s attorneys are authorized to includea limite dnumber of Town constitutents and or property owners in the Town’s appeal or in a separate appeal if they consider the inclusion of said parties is in the Town’s best interest; and
Be it further resolved that, the Town’s attorneys shall keep the Town Board advised and updated after the appeal is filed.
Campbell thanks Rich and asks if John has anything to add, John says that there is a real legal issue, they are not doing it for no reason, there is a real legal issue here. Part of the problem is that the zoning administrator gave an opinion to their employer and he thinks that is a conflict of interest, that a 3rd party should take a look at this, he disagrees from a legal perspective, he’s not doing this because someone is telling him this, he believes an appeal should be filed.
Jim Campbell (Jeff Kurick second) makes the motion to approve the resolution. He says that this is unique, Dane County followed the correct procedure, they determined what the legal use is, but they have a conflict, it might not be a legal one, but we wouldn’t allow the developer on another project decide if it were a permitted use, so if for no other reason, they should have an independent 3rd party decide if it is a permitted use, that 3rd party is the Dane County Board of Adjustment. If either party prevails the other party can take it further if they want.
John says there is no legal conflict, he just thinks it is unique.
Jim says that is the only issue.
Passes unanimously 3 – 0.
AGREEMENT ON PAYMENT FOR SERVICES
They take this item out of order. Mr. Rose from the Town of Madison explains that there are 14 conditions of approval for the building permit. One of the conditions is Dane County will enter into agreement for extension of public right of way items, the County will pay the costs of those improvements. He says they should defer that to another meeting since they filed the appeal. John the Town Attorney says that i would be a waste of time due to the zoning appeal that they filed.
TOTAL SIDE NOTE
WOW! Talk about open and accessible government. During the meeting they let members of the public suggest future agenda items but just shouting them out. There were not registration forms. A great example was that they moved an item out of order, they introduced them to Officer Brown and the new K-9 unit. Members of the audience just shout out questions. Couldn’t imagine the City of Madison acting this informally, audience asking the age of the dog, why its hair is so short, where it will be trained, what will he help them do (marijauna meth cocaine, crack cocaine detection) and apprehension for fleeing suspects, handler protection and tracking. Dog, etc paid for by donations, still taking donations, all tax deductible, $6 – 7K per year for the dog. It was adoreable. There were about 20 audience members and they just talked directly to Town officials and asked questions as if they were participating in the meeting. It was amazing. While finding their agendas on line is impossible, if you show up, you have unlimited access.
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