Poll Results: Open Records Response

How long before I get at least a courtesy response to my open records request from Council Staff or Leadership? (Hint, its been 5 days on 12/23)

Real Answer: 10 days

Poll Answers:

Forget it.

8 (10%)

Bruer uses email?

21 (26%)

Relax, its the holidays.

22 (28%)

<8 days 1 (1%) 8 - 14 days 12 (15%) 2 weeks + 21 (26%)

Results of open records request posted here. Read more!

Mid-Week (Tuesday) Round Up

Love it when Tuesday is mid week . . .

ONE WEEK, THEN A DO-OVER
That's right, the Edgewater is back. Re-do the bingo game, print out the drinking game rules, grab the caffeine beverage of your choice, watch for more push from the mayor and council leadership to cram this down our throats, count the alders who will be present, hope it doesn't snow . . . let's try this for a third time . . . it looks like its all coming down to . . . dare I say it, an undecided Pham-Remmele and Compton. Could be an even longer meeting as they catch up to the rest of the council. And it might end up in referral if Compton's argument wins (same as Cnare motion - wait til Plan Commission and UDC are done with the project). And, if it passes or gets referred, then, watch out for the "efficient" approval process that Bruer is talking about . . . sounds like they are planning on more short-cuts. What a freaking nightmare. I took the 6th off - still have vacation days to burn . . .

WAIT FOR IT . . .
They still haven't confirmed who will and will not be at the Council meeting on Tuesday. The council members were given 18 hours, during a holiday week to let the council office know if they will be in attendance:

From: Veldran, Lisa
Sent: Monday, December 28, 2009 2:58 PM
To: ALL ALDERS
Subject: Notified Absences: Common Council Meeting January 5, 2010

Council President, Ald. Tim Bruer, has asked that I email alders to find out if any of you will be a notified absence at the January 5, 2010 Common Council meeting.

As of 2:57 p.m. on 12/28/10 I have no alders being absent at the January 5, 2010 Common Council meeting.

Please let me know by 9 a.m. tomorrow, December 29, 2010 if you plan on being absent.

Thank you.

I wonder how many alders won't even check their email in that 18 hour period.

SPRING ELECTIONS
Today, I covered the county board candidates, I count on TJ to cover the school board . . . and he does. One week to go til the races are set! 19 so far on the county side? 4 retirements, 15 challenged incumbents.

SKIDMORE TAKES A STAND
Against Walmart and 7-11 and for the low- and middle-income shopper!

REMOVE THAT SNOW
I signed up for some of the alerts from the City of Madison. Here's one of them I got yesterday.

Sidewalk Snow Removal Alert
The snow that accumulated on Saturday, December 26, 2009 and Sunday December 27, 2009 must be removed from the public sidewalks by noon on Monday, December 28, 2009. Sand and/or salt must be applied to packed snow and ice that remains on the public sidewalks.

Seriously, do you think they might start enforcing this against absentee landlords downtown, that would be cool! It just doesn't really seem to happen without complaints, which you can easily file on-linehere. Hint. Hint.

BRUER'S BEEN CALLED ON TO "MANAGE" ME
End of the day yesterday, I got this email - A response to my open records request.

Please find attached a PDF copies of the following documents:

1. 2009 Absence from the City Emails – Alders – These are official notices that are sent/copied to the City Clerk (MGO 2.025) and which should be on file there as well.

2. 2009 Aldermanic Absence – Staff Calendars – These calendars are for staff use only, are not a complete or accurate absence account and should not be considered official notices of absences.

[snip]

If you are in need of further assistance please feel free to contact Ald. Tim Bruer, Common Council President.

There's some differences in the info in the first and second documents, trying to figure that out. The first document is only for missed council meetings and absences for longer than 5 days. The second has more information, which is why it was what I had originally requested. I haven't sorted it all out yet. See below. Any which way, the fact that Bruer doesn't respond, this sounds like a blow off to me.

WIIIIIIIIIIIIIIIIIIIIIIII
Rob and I, after talking about it for a year, finally bought a Wii. :) So, I was too busy defeating the Black Knight to finish my blog on snow. Maybe tomorrow. Or maybe not . . . :)

WEEK AHEAD, CANCELLED
Meeting: ADA TRANSIT SUBCOMMITTEE TO THE TRANSIT AND PARKING COMM on 12/28/2009 5:10 PM at ROOM 303 MMB has been cancelled.

WEEK AHEAD, ADDED
I really didn't think they'd add anything this week . . . but . . . well, they did.

Tuesday, December 29, 2009
5:15 PM HUMANITARIAN AWARD COMMISSION, REVEREND DOCTOR MARTIN LUTHER KING JR. ROOM 523 CCB

OOOOPS
That's embarrassing. Think they really get to keep their jobs?
Read more!

The Mayor, Blogging, Council Use of Web Pages & Woeful Use of Technology

Inspired by Kristin's puff piece on Mayor Dave Cieslewicz blogging . . . not her fault its a puff piece, not much news happening and I'm sure she had to write something and I'm sure the Mayor's office encouraged her to do it for the free pr. Anyways, here's my mishmash of thoughts on technology and the elected officials.

THE MAYOR'S "BLOG" - BREAKING THE LAW? ER, POLICY.
I've written about this before. None of the policies have changed. In fact, I double checked and about the only thing on the sorely-in-need-of-an-update IT website is their web policies from 2006. It still says, on page one:

Blogs, Chat Rooms, Forums, etc.
Creating blogs, chat rooms, forums, or any other avenues for content to be posted without prior review are prohibited on any sites associated with or hosted by the City of Madison. The City would be liable for the content and does not have the resources to review or monitor what gets posted. Current Network and Security Policies prohibit City employees from using personal email accounts, chat rooms, and instant messaging.

Now, on its face, you'd think blogs were not allowed and what the Mayor is doing is against the policy. He writes something called Mayor Dave's Blog. And this policy says that "creating blogs" . . . "are prohibited" . . .

There are three reasons that he is allowed to do it. One is, according to IT staff, it's not a blog. It doesn't allow comments. And it doesn't even link to anything, so its little more than a daily update of a website. Originally, it wasn't even archived. It's finally archived, which is good, since they need that for open records purposes.

The second reason that is given is that the policy was created because they don't want things posted to the web that have not been reviewed by staff. Since the Mayor's staff reviews it, they say its ok. However, I'm not sure they are reviewing it to make sure it confirms to the website policies of the City of Madison, which is the point of that requirement.

The third reason is, quite frankly, he's the Mayor. See below for why alders haven't yet been allowed to blog on the city's website.

Any which way, its a good thing he's blogging but a) its too bad that it's not a real blog with links and comments and b) I think that someone other than the Mayor's staff should probably be reviewing it to make sure it conforms to city policies, particularly to review if it has political content. However, I pity the city staff person that would have to tell the Mayor he can't post something because it doesn't comply with the web policies.

COUNCIL BLOGGERS ON PRIVATE SITES
Several Council members over time have started and stopped blogs:

My blog started at the end of November 2005 and it is the only one that has been around consistently for this long. I started mine because I had blogged for Dane101.com and Madison.com and I wanted to do it my own way and not interfere with or adhere to the rules of the other blogs or use their clunky software. I was also wanting full disclosure on how much I was getting lobbied since the lobbyists weren't filling out their reports, but I wasn't sure my content fit well with the other sites. I'm not sure my content is still on either site, but a HUGE thank you to Dane101 for helping be provide information to the public that was not available through the city website.

Zach Brandon started his January 2006 and ended December 2006.

Larry Palm's blog says you need to be invited to read it. Which, I'm not sure an elected official can do due to open records laws, depending up on what, if anything is on it. I don't recall when he started his, but I think it was shortly after Zach's.

Eli Judge had a blog that ran from April 2007 to April 2009. He incorporated video into his site and posted relatively frequently - meaning a couple times a month, but there were a few skipped months, typically in the summer when students were gone.

Brian Solomon had 5 posts in 2007, 3 in 2008 and 1 in 2009.

Bryon Eagon seems to have a post or two a month.

Bridget Maniaci has a blog, with 32 posts this year. You'll have to see for yourself what you think of it. Anything I say will be suspect.

Michael Schumacher has a blog. He started it in May and posted until about the same time he stopped being in town. He's talked to me about blog posts he was working on, but they never materialized.

And that's it, I think. I apologize if I missed anyone. Former Alder Webber now has a blog site. It's got 21 posts in the last two months. As you can see tho, most blogs are either failures, shut down or they post very infrequently. Part of it is that not many people read them if you post that infrequently, which is why it would be useful to have them located on the city website were more people might view them, or at least let them link to them from the city's website. That might encourage more alders to think it is worth it to start and maintain a blog.

ATTEMPTED ALDER BLOG ON CITY SITE
When I was an alder, I asked if I could have a blog on the city website, like the Mayor's. I wasn't quite sure how I was going to use it, but I envisioned using it for district news and comment about upcoming and past council meetings and larger issues within the city. Tho, I realized it would be a challenge to have appropriate content and to not link to anything not on the city's website, but I still thought it might have some value and could supplement my current blog. Mostly tho, I thought it would be an easier way to put content on my web pages that the council office and IT set up.

At first I had to wait for them to work out the kinks and get the archiving system in place. Then, I had to wait for policies to be written. (I requested a copy of the policy, I saw a draft in early 2009, but never saw a final version.) Then, I had to get permission from the "department head", that being the Council President. This email was sent . . .

From: Edgerton, Sarah
Sent: Wednesday, January 21, 2009 4:34:23 PM
To: Bruer, Tim
Cc: Clear, Mark; Konkel, Brenda; Veldran, Lisa
Subject: Alder Konkel's request for "Blogging"
Auto forwarded by a Rule

Good Afternoon Alder Bruer,

Alder Konkel has requested rights to the Web Alerts application. The application will allow her to “blog” to the District 2 Council web site. As the Council Department Head, I need to get approval from you, before we can give Alder Konkel rights to the site.

Thanks,
Sarah

And, uh, guess what, no reply. I finally asked in person, and I was told to wait until after the election. There was too much concern about politicians blogging on the city site - even tho the Mayor was doing it. And that was the end of that.

Finally, I'm real curious if having a link to the city's website would help with page views. The Mayor says he had 15,000 page views last month. This month, on this blog, I have over 20,000 at the moment. I have to believe that if it were connected to a site with other content, that number might be even higher.

LISTSERVES
The other thing I really wanted to do was have a listserve for District 2 residents that could be signed up for through the city website. I had listserves set up for my neighborhood associations, but I either "own" them or "manage" them separate from the city. Which, is awkward, cuz now that I'm not the alder, I still control the listserves. I've left them in tact and am encouraging continued use of them and have authorized other neighborhood leaders to manage the lists, but it would be great if the districts could have those resources so that when alders turn over, the lists remain in tact. As far as I know, this was also something we were going to work on after the election and based on the lists you can sign up for - it looks like that resource still isn't available for the alders. Or they aren't using it. See comment below about Mark Clear's Council website.

GRADING THE ALDERS ON THEIR USE OF THE CITY WEBSITE
DISCLAIMER: First, let me say, its not their fault. They get no support whatsoever. It's pretty sad for a city our size. The primary council office staff are too busy gossiping and playing solitaire to be bothered with being helpful to the alders. And the quality you might get from that staff is hit and miss anyways. In fact, as you can see above, the alders are almost discouraged from using new technology.

As far as a I know, the council members are in charge of their own content, get little or no support from council and IT staff and had minimal training on the Contribute software that was finally loaded on their laptops. I think they should get more support and help in keeping their websites up to date. It could be a powerful tool for communicating with and educating their constituents about what is going on in their districts and in the city. There are several flaws in the system, of course, the largest is the archiving tools/lack of tools. They have to manually transfer the information to the archive page. And, if I were to do an open records request for the information that was on my website when I was an alder, I'm quite certain they would not be able to provide you with that information.

Just so you know, the alders have 6 areas which they can influence
- DISTRICT X HOME
- BIOGRAPHY
- DISTRICT NEWS
- INITIATIVES
- PENDING & ADOPTED LEGISLATION (This could be automatically fed from Legistar, but its not)
- ARCHIVES

Here's their grades
- F (No content in any of the areas, likely doesn't even realize they can add content to the site.)
Steve King
Bryon Eagon
Chris Schmidt
Mark Clear - Content on every page except initiatives and would have been a C or C+/B-, however, he has link on his front page for a listserve that is linked to his inactive campaign website (markclear.com). It think that's a huge no-no. He's not real big on ethics and open meetings and open government type issues, so I'm not surprised. A huge failing for council leadership. For what it's worth and to save it for the future since it won't be archived by the city, here is what it says:

If you live or own property or a business in District 19, I encourage you to join my e-mail list by sending a blank e-mail to join-d19news@lists.markclear.com.

- D (Random minimal content.)
Jed Sanborn - Has a bio, that's it.
Bridget Maniaci - August Edgewater Meeting, that's it.
Mike Verveer - A September Lisa Link meeting, an archived meeting and a minimal bio.
Shiva Bidar-Sielaff - Two district items from early fall.
- Marsha Rummel - Minimal bio, some district news items and some archived info.
Paul Skidmore - A bio, some district news and a post from September on the fire station.
Brian Solomon - A decent biography.
Tim Bruer - Weak bio and nothing else.
Thuy Pham-Remmele - A minimal bio and some good neighborhood links and an archived meeting.

NOTE: Those with only a bio are alders who have been around for a while. Council staff pushed us to get a bio to them before they turned over access to the website to us, so, the newer alders didn't get that same assistance.

- C (Minimal content, semi-current. Semi-current defined as posted in last 3 months.)
Lauren Cnare - A minimal bio, a newsletter from 2006 and an October meeting.
Judy Compton - A minimal bio, a September and October neighborhood meeting listed.
Joe Clausius - Minimal bio and October meeting.
Michael Schumacher - Bio, one piece of legislation and some neighborhood links.

- C+/B-
Julia Kerr - Content in every area but Pending and Past Legislation, not current.

- B (A bio, minimal content and current. Current defined as posted in last month. Or, an attempt to have content on each page.)
Satya Rhodes-Conway - Content on every page, but outdated.
Larry Palm - He was the leader for so long, but I didn't find much current. It was probably frustrating if no one else was using the pages no one was looking there for relevant information.

- A (Current site, with relevant regularly updated content and content in all areas.)
None.

And, there you have it folks. The council could really be using the city resources to help keep people informed, but without support, its difficult. On the other hand, the Mayor has a full time press person, a total of 10 staff in his office, plus command of the entire city workforce and the ability to "blog". The council, for comparison's sake, has 2 staff people for all 20 alders and rules that make it difficult. Read more!

I lied/Can't Sleep Extra Round Up

So, I wasn't going to blog today, but . . . I came home last night after being sniffly all day, made dinner and laid down. I was freezing so I covered up and fell asleep. Now, in the early am, I'm awake, sick/can't sleep cuz of runny nose and cough and waiting for the cold medicine to kick in, so . . . here's what I have for today . . .

STILL, NO ANSWER
Looks like council leadership (Tim Bruer, President and Mark Clear, Pro Tem), Mayor Dave Cieslewicz and Bob Dunn (Hammes Company) didn't come to any agreement today. They're meeting again on Tuesday.


CAT IS OUT OF THE BAG - HO CHUNK AND UNION CORNERS
I've been hearing about this, but was sworn to secrecy, that's why Barrett scooped me! :P Guess it's not a very big secret as this went out over a neighborhood listserve or two:

Today there was a meeting at the Ho-Chunk Nation office on Mendota Street to discuss their plans to develop the Union Corners property located at East Washington Avenue and Milwaukee Street. There were about 20 people including Alders Rummel, Palmer and Rhodes-Conway, reps from nearby neighborhood associations, including SASYNA, and other groups interested in development of this site (i.e. Commonwealth, Project Home, Eco Realty, Progressive Party, Urban Farming, etc.). The nation plans to purchase the entire property and would like to develop it over an eight year period. The very preliminary plans for the first phase include a building for nation offices and a nation museum, a health center and daycare center. The office/museum would be located at the very visible East Wash/Milwaukee Street corner. Phase 2 might include a gas station/convenience store. Phase 3 might include affordable apartments and senior housing with a public meeting hall. A grocery store is possible and the nation is open to partnerships with other businesses or organizations. There are no plans for a casino. The nation has similar types of developments elsewhere in Wisconsin including health care, child care and community centers.

Plans are very preliminary and will be open for input from surrounding neighbors and interested organizations. Joe Green from Ho-Chunk Nation discussed their plans. He grew up in the neighborhood and attended East High. He made it clear the nation wanted to create a project which benefited the neighborhood and city. The project would be affordable and environmentally positive including features such as solar panels and low energy consumption. It would fit into the existing neighborhood so buildings would be shorter than previously proposed for the McGrath development. They would not remove the property from the tax rolls so it would contribute property taxes for Madison schools and services.

A decision to pursue this project will be made by the nation during January. By the end of the January, preliminary plans for the property would be available for review by the public during meetings with interested parties. SASYNA was very involved in the original plans for Union Corners and will continue to involved. Stay tuned for more info during the new year.

There was a very positive reception to the Ho-Chunk plans for Union Corners. This is a very positive development for the neighborhood.

Looks like it wasn't a big secret if all those people were there and its on list serves and even Barrett knows about it. :) Giggle. I'm just always glad when someone tells me something is confidential, and I can't be accused of being the leak.

THAT'S WHAT MAKES THIS FUNNY
Giggle. This article chooses a funny example (and picture) given the above. And points out how out of touch the council leadership is.

AN AGENDA FOR THE CITY
Joe Tarr from the Isthmus gets the Mayor to talk about his agenda for the city. And uses a progressive as Mayor Dave's foil. I suppose he had to, since I'm not sure others have a vision for what the city should be working on in the next year. I happen to agree with Satya Rhodes-Conway and I'm happy she was able to clearly articulate an alternative as good progressives do, I'm just frustrated that the story doesn't have an agenda from the moderates or conservatives on the council. Is this part of the positioning towards the right of the Mayor - or did no one else have an agenda? Or don't they want to admit what their agenda is?

The Mayor's agenda is crime. And then there's these other things:
- building support for a referendum on regional transit next fall
- breaking ground on the new Central Library
- winning federal support for high-speed rail
- improving relationships with the business community
- and pursuing green initiatives, like making the city more bike-friendly and energy-efficient.

Rhodes-Conway counters with:
- strong attention to economic development - she says. "I don't mean attracting large companies. I mean helping support and grow the businesses we have."
- review some basic economic development mechanisms, like tax increment financing and put a process in place for evaluating job creation proposals for TIF
- equal review of downtown and periphery projects
- help people in these tough economic times, pay attention to community services

Heh, people. Notice the mayor didn't mention people who are struggling or community services, even tho they are going through an extensive review of their funding processes and priorities.

Falk gets it right, focusing on jobs.

"ANOTHER DUDE"
This note from the Mayor was forwarded to me with the title above . . . can't say I'm surprised.

I wanted you to be among the first to know that I’ve made a decision about the City IT Director position. I’m pleased to welcome Paul Kronberger to the City of Madison.

Paul has an extensive background in IT. He started his career in the City of Milwaukee IT Department, has worked for the Wisconsin Department of Revenue as IT Director and the Wisconsin Department of Commerce as IT Director. After a few years in the private sector, Paul is eager to return to the public sector to serve the City of Madison.

This was certainly not an easy choice, as we had three very qualified finalists for the position. Dave Faust and Rich Beadles have been the consummate professionals throughout this lengthy process and throughout their careers. I thank them for that and I know that they will continue to make great contributions as we move forward.

You will have the opportunity to learn more as Paul’s confirmation comes through the Council. I look forward to you all having a chance to meet Paul.

I don't know what the applicant pool is, but I'm glad someone is noticing the trend besides me. It may or may not be a valid comment, but, I'd like to hear the Mayor articulate what they are doing to bring gender equity to the leadership in the city. Think maybe the next planning director might be a woman? Ok, I bet not.

MORRISEY ON POT
Um, no, he's not smokin' it. He has an opinion on it. An interesting one at that.

WORDS MATTER
Hmmm, I found this article curious. Joel DeSpain says the following:

"The crime took place outside, and one of the four suspects had a handgun," DeSpain said.

However, if you read to the end of the story you find out:

"Money and electronic items were taken during the robbery, and one suspect was found carrying at least one stolen item," DeSpain said. "Officers also recovered a facsimile handgun."

If the second statement is correct, shouldn't the first statement perhaps have been worded differently?

GOOD TO KNOW
Was I running against Noble Wray? David Blaska claims the following:

In the spring election, Police Chief Noble Wray and the police union defeated Brenda Konkel.

[NOTE: When I quote someone, I provide a link, to provide the reader with easy access to information and to ensure I don't take something out of context and to keep things honest. It would be kinda cool if professional newspapers would hold their bloggers to the same standards.]

Good night, happy holidays to those who will be celebrating over the next few days and stay safe on the roads. Read more!

New Poll: Response?

So, I thought I should explain my new poll for those who may not know what its about. First of all, its just a going to stay up until I get a response, as a reminder of the terrible open records process at the city.

It all started when I wanted to know how many days Schumacher was out of the city and where Compton was for the last meeting. Schumacher's absences have become a running joke around city hall, and I wanted to see how bad it really was. (So far, without the benefit of actual city records, I've been able to determine its been 62 days or 43% of the time since August 1. No answer on Compton yet.) I explained part of the story here, under "Shitty City Service". It all started Thursday, December 17th, a week ago (Thursday) when I requested copies of the calendars that hang in the council office in plain view for the public. The long time city staff who takes care of this was out of the office til the 28th according to the vacation response. I asked another staff. Meanwhile, the original staff, within 6 hours of my original email, while on vacation, told me to ask the clerks office. The clerk's office said they don't have the information which makes sense since it is a calendar maintained by council staff. So, I went back to the original staff and did a tersely worded formal open records request.

[XXXX] -

Ok - we can do this another way if you don't want to do it the easy way - by sending the calendars of absences that I have seen you use many times in the past. [Comment about inappropriate use of the information]

Please consider this an open records request. Please send all notices you have send out regarding alder absences from the city during 2009. [Direct comment about not providing the information that is in the office and the inappropriate response to a request for that info/]

Brenda

p.s. I'm embarrassed for the city that you would deny this information is in your office and try to make me go to the clerk's office, who has told me they don't have the information.

And haven't heard a word since. Knowing the staff was out of the office, on Saturday morning I followed up with the staff in the office, the city attorney that is the "go to" person on open records laws and council leadership Tim Bruer, President and Mark Clear, Pro Tem. The email I sent them is (partially) as follows:

Tim/Mark
I don't expect a response from [staff name] on this - [comment about unprofessional behavior of said staff] And since she is out of the office until the 28th, could you please make sure that someone, likely [staff name] is following up on this. The calendars used to hang in the hallway of the Council office by all the agendas for the meetings, right when you entered the office on the right and if they are accurate, that would be ok information. If that is not complete, then the emails would be necessary. What I am looking for is accurate information about when people were out of town and noticed the council office. I know all alders get some emails some times when people are out, [staff name and comment about unprofessional behavior], but that is what I am looking for, in whatever the most accurate form is.

Thanks! [Personal comment to Tim and Mark about addressing concerns in Council Office]
Brenda

Obviously, I got some information from some helpful folks, but it wasn't the official response, which is what I would like to ensure my information is accurate. Knowing the holidays were coming up, after I didn't hear anything on Monday, Monday evening I followed up with this, to clarify what I was looking for:

Several people have stepped forward and were very helpful in getting me information. However, I don't know if it is accurate. For instance, while the newspapers say Alder Compton was away on vacation, she was scheduled to be away December 1 - 7 and then listed as absent only on the 15th, so I'm unclear if the info I have received is accurate. I have all the calendars and several emails about absences sent to me by others, but I'm unclear if I have a complete picture. Will someone from the Council office be following up on this?
Brenda

No response on Tuesday.

No response on Wednesday.

I don't expect a response today, tomorrow or over the weekend.

But . . . I thought someone might have at least sent me a "yeah, we're looking into it" email. Or, "wait til the staff gets back" response. Or, "we can do that but we're going to charge you", as allowed by law and confirming I still want the info. Or, "staff x is the official record keeper of that info an you have to get it from x". Or "those aren't official records". As far as I know, Clear and Bruer weren't out of the city this week - at least not according to the calendar for December I did receive, but then again, I'm not sure it was up to date and accurate, but since they met with Bob Dunn today, I'm assuming not - unless they phoned it in. But it looks like they are meeting again on Tuesday, so I'm assuming they are checking their email and conducting city business. I know this might not be top priority, but a 30 second response was all I was looking for.

I suspect, they are making sure that I don't have the information by the meeting on the 5th when the Edgewater comes up again. And it makes me wonder, is there something that they don't want me to see? Or, are they blowing me off? Or, is it just the holidays? I can't say that I know, but I do know that it looks bad. Can't wait til Monday to find out if I get a response then. Read more!

Reconisderation . . .

I've been getting lots of questions about how reconsideration works. Luckily, Michael May just resent an old memo on reconsideration, which, unlike more recent opinions in the last year or two, I completely agree with. So, you can read it here. Or I've cut and pasted a less pretty version of it below.

DATE: July 13, 2004
TO: Mayor Cieslewicz
Common Council Members
FROM: Michael P. May, City Attorney
SUBJECT: Point of Order - Motion for Reconsideration

From time to time, issues may arise relating to procedure before the Council for which I think it appropriate to give advice to the members on proper procedure. When I do so, these will be in a "Point of Order" memorandum.

Recently, a question arose as to the proper manner of making a motion for reconsideration of a matter which had previously been approved by the Council.
Chapter 2 of the MGO, Standing Rules for Government of the Common Council, provides as follows at Section 2.21:

2.21 RECONSIDERATION OF QUESTION. It shall be in order for any member who voted in the affirmative on any question which was adopted, or for any member who voted in the negative when the number of affirmative votes was insufficient for adoption to move a reconsideration of such vote, at the same or next succeeding regular meeting of the Council. It shall be in order for any member who was, due to an excused absence, not present at the time the question was considered to move reconsideration of such vote at the next succeeding regular meeting of the Council. A motion to reconsider having been lost shall not be again in order. A motion to reconsider shall not be in order when the same result can be obtained by another motion. (Am. by Ord. 5188, 10-20-75)

Section 2.32 of the MGO also provides that Robert's Rules of Order govern on any matters not covered by the Council's standing rules.

Sec. 36 of Robert's Rules of Order governs the making of a motion for reconsideration. It makes several points. First, the motion must be made either at the same meeting in which the original motion was made, or, in meetings of more than one day (like conventions), on the following day. This portion of Robert's Rules is modified by Sec. 2.21 of the Council's Standing Rules, which allows a motion to be made at the next succeeding Council meeting.

Second, Robert's Rules also makes a distinction between the making of the motion and the time of consideration of the motion. This is significant because of constraints imposed by the Wisconsin Open Meeting law.

Based upon the above, we advise Council members and the Mayor that motions for reconsideration should be made as follows:

1. A motion for reconsideration of any matter is in order if made at the same meeting in which the matter was adopted. The motion would be considered at that time.

2. Pursuant to Sec. 2.21, MGO, a motion for reconsideration may also be made at the "next succeeding" meeting of the Council. Due to the requirements of the Open Meeting law that any matter to be taken up must be noticed, a motion must either (a) be placed on the agenda for the next succeeding Council meeting, in which case it would be made and considered at that meeting; or (b) if made from the floor at the next succeeding Council meeting, it will not be considered until the following Council meeting. That is, the motion will be treated as a matter introduced and referred to the following Council meeting.

3. Pursuant to Sec. 36 of Robert's Rules of Order, the "effect of making a motion to reconsider is the suspension of all action that depends on the result of the vote proposed to be reconsidered …." Thus, a motion to reconsider means that the matter previously passed is not effective until the motion to reconsider is taken up by the Council.

4. A motion to reconsider must be distinguished from a motion to rescind. See Sec. 2.26, MGO. A motion to rescind assumes that the action taken by the Council is effective, and asks that it be rescinded. Under Sec. 2.26, such a motion must be made at a prior Council meeting, except for emergency situations requiring a two-thirds vote of the Council. Moreover, a motion to rescind cannot be considered after publication of the legislation sought to be rescinded.

Thus, if any Council member wishes to ask for reconsideration of a question, the motion should be:

-- Made at the meeting at which the question was considered, in which case the motion for reconsideration would be considered immediately at that time; or

-- Made at the next succeeding Council meeting, in which case the motion would be considered at the meeting if it had been placed on the meeting agenda and noticed, or would be treated as being a matter introduced at the meeting and referred to the next Council meeting for consideration.

If you have any questions on this, please contact me or Assistant City Attorney Roger Allen.

Read more!

M.I.A. Alder (s?)

Which Alder has been out of town 65 days since May 1st?

I still haven't gotten a response to my open records request I told you about here. Anyone want to place bets on how long it takes to get the information? Realizing that council staff Lisa Veldran is out of the office until the 28th, I emailed Pro Tem Mark Clear and President Tim Bruer to assist me, but no response from them regarding my request to make sure someone was working on this. But, an alder or two, a couple helpful staff people and an interested citizen or two, I was able to put together the following which are as reliable of information as I could get without confirmation from the information requested and denied by staff. But, it makes me wonder. Is it right for an alder that hasn't even been in the city to move reconsideration. Legal? Sure. But is it right?

ALL ALDERS ABSENCES MAY 1 - DECEMBER 20th
Michael Schumacher = 65 days.
Judy Compton = 28
Michael Verveer = 25
Julia Kerr = 24
Mark Clear and Steve King = 22
Lauren Cnare = 19
Mayor Dave Cieslewicz = 16
Thuy Pham-Remmele, Satya Rhodes-Conway and Jed Sanborn = 15
Tim Bruer = 14
Larry Palm and Chris Schmidt= 13

The rest were gone less than 10 days. At least, based on the information I was able to get that should be accurate, and if anything, under counts the days out of the city.

SCHUMACHERS MONTHLY ABSENCES
What was stunning, beyond how much more time Schumacher was out of the city than the top alders, is that Schumacher's absences were mostly (62 of the 65 days) in the last, less than 5 months of the year:
August = 22 days out of town
September = 8 days out of town
October (warm up to budget) = 19 days out of town
November = 2 days out of town
December 1 thru 20 = 11 days out of town

SCHUMACHERS COMMITTEE ABSENCES
In addition, here's what I found on his committee work.

PLAN COMMISSION
There are minutes missing for 6 of the 23 meetings since May, so I could only check 17, of which he missed 5 and there was an additional one he didn't show up to and there was no quorum.

WATER UTILITY
There were 11 meetings, one where there was no quorum and Schumacher was not in attendance, so of the 10 meetings that were held, he was gone for 6 of them.

HOUSING DIVERSITY COMMITTEE
There were 5 meetings, he missed two. There was a 6th meeting where they could not get quorum.

CITY-COUNTY LIAISON COMMITTEE
There was one meeting in October, Schumacher missed it.

HOUSING COMMITTEE
There were 8 meetings, Schumacher missed three.

ALRC
There were 10 meetings and he made all of them but one.

COMPTON'S VACATION
The other thing I don't understand is that in the information I received Judy Compton was out of the city November 23 - December 7th. And then here the rest of the month, except on the 15th. She appears to have been in town for the 14th and 16th, but not the 15th. I've heard she was on vacation that she had planned, but I think that was the previous absence. This is the email the alders got:

Ald. Judy Compton will be absent from the City on Tuesday, December 15, 2009 and unable to attend the Special Common Council meeting at 6:30 p.m.

A one day vacation?
Read more!

Short Week Monday Morning Round Up

Edgewater free round up . . .

CITY ECONOMIC DEVELOPMENT MIA
So, where is our Economic Development Commission, our Economic Development Director and city leadership? With all the talk of jobs and the economy, wouldn't you think buying local would have been a top priority this shopping season?

NO WONDER THERE IS SO MUCH SHERIFF'S OVERTIME
What kind of management is this?

The biggest change in the Sheriff’s Office this year that reduced overtime was reversing a policy that allowed deputies to take whatever vacation days they wanted. In the past, the “red zone vacation days” — June, July, August and holidays — would have so many deputies out that the department had to schedule seven deputies on overtime each shift.

Holy crap, that's just irresponsible. Check out what Moody's has to say about it:

When Moody’s Investors Services downgraded the county’s bond rating — an indicator of the county’s financial health — in September for the first time in decades, the analyst pointed to the overspending in the Sheriff’s Office as one of the reasons why the county posted a $10 million deficit in 2008.

What bothers me even more is that I've heard County Board Supervisors defend the Sheriff by saying, "its what all the other sheriff's have done, so we can't blame Mahoney". I'm not sure I blame Mahoney, I blame the county board supervisors with that attitude.

WSJ AND SHERIFF'S ASSOCIATION WANT YOU TO RUN FOR OFFICE
I wonder what they would have to say about the above?

CLASS BASED AFFIRMATIVE ACTION
I found this article interesting. This isn't a new idea by any means, but its interesting to see people talking about it.

SEE A PROBLEM HERE?
The city kinda screwed up and as a result, some of the poorest people in the city had a huge rent increase with little to no notice. Months later, they have not been made whole. Now, it add insult to injury, if the city gets money from the federal government here's what they are going to do with it:

If the city gets the extra money, it will be distributed to landlords, who will be required to make refunds to tenants whose rent was increased, said Rachel Strauch-Nelson, spokesperson for Mayor Dave Cieslewicz.

Does that make sense to you? Sounds like a recipe for disaster as the tenants fight to get their money back. Why not give it directly to the tenants? How can we be sure they actually get that money back and that the landlord doesn't get paid twice?

GRINCHOR A SIGN OF HOW DESPERATE THE TIMES ARE?
Nobody likes to see this. I think it's a sad comment about how desperate some people have become.

IS OUR WATER SAFE?
This was a good recap of the issues. More here.

COUNCIL BLOOPERS
I've heard people talk about doing this for years, kudos to this rookie class for finally getting it done!

DO OVER
Without the racism this time. I missed the Hip Hop discussion at ALRC, but I have to say, I didn't have high hopes. I can't wait until they come out with best practices for County music. Or Jam Bands.

WHERE CAN YOU RECYCLE YOUR PLASTIC BAGS AND HOW MUCH WILL IT COST?
Cost first? Nothing? Or waste of resources? This article has two points of view:
From the Business Commmunity we have this:

Brandon Scholz, president and chief executive of the Wisconsin Grocers Association and an early critic of the program, said Thursday the program was an ineffective use of city resources because many private companies in the city already offer the same service. He also predicted the city's outdoor bins would be hard to keep clean and difficult to monitor for misuse.

From City Staff we have this:

Dreckmann said the plastic bag recycling bins would be emptied about every two weeks, depending on their level of use, and the program wouldn't pass any new costs onto taxpayers.

Which do you believe?

Second, when I first read about the new plastic bags recycling program, the options seemed really limited and seemed to lack downtown locations, but it turns out the list is much longer than reported on channel 15.
Here's the list.

City of Madison Self Help Drop Off Centers
- East 4602 Sycamore Av
- South 1501 W. Badger Rd
- West 402 South Point Rd

Other City Sites
- Glenway Golf Course Waste Oil Site
- Monona Golf Course Waste Oil Site
- Warner Park Community Recreation Center

City Program Participants
- Aldi Stores - 3925 Lien Rd & 8222 Watts Rd.
- University Bookstore - 713 State St
- Williamson Street Co-Op - 1221 Williamson St.

Other Plastic Bag Recycling Sites
Capital Center Foods - 111 N. Broom St
Copps Food Stores
- 3010 Cahill Main
- 620 S. Whitney Way
- 1312 S. Park St
- 2502 Shopko Dr
- 6540 Monona Dr
- 3650 University Av
- 261 Junction Rd.
- 6655 McKee Rd.
HyVee - 3801 E. Washington Av
Kohl's Department Stores - 2602 East Springs Dr. & 7401 West Towne Way
Metcalf's Market (Sentry) - 726 N. Midvale Bl
Pierce's Northside Market - 2817 N. Sherman Av
Sentry Foods - 4602 Cottage Grove Rd.
Trader Joe's - 1810 Monroe St.
Wal Mart - 7202 Watts Rd & 4198 Nakoosa Trl
Whole Foods Market - 3313 University Av.
Woodman's - 3817 Milwaukee St & 711 S. Gammon Rd

On a slow week, its a good thing I still have 20 - 30 more emails labled "blog topic" in my blog folder. Expect some more, perhaps more stale round up tomorrow.
Read more!

Council Meeting Cancelled

Sent from the council office:

In response to concerns with the weather, the declared blizzard warning, State, County and City law officials requesting that motorists stay off the roads and in the interest of public safety, the Common Council meeting for tonight, Tuesday, December 8, 2009, has been CANCELLED.

The meeting will be rescheduled for Tuesday, December 15, 2009 at 6:30 p.m. (Room TBD).

Read more!

It's About Integrity

David and Leigh Mollenhoff's advice to council members . . .

In an email entitled "Tell 'em to vote 'no" then sent this note:

Dear Alders,

My wife and I were privileged to serve on the Madison Landmarks Commission for a combined total of 16 years. During that time the original ordinance was passed and the Mansion Hill Historic District was established. This experience and our keen interest in the ordinance since we "retired," prompted us to write you a very brief one-page memo. We felt it was a needed response to the WSJ editorial last Sunday. We hope you find it helpful.

Thank you,
David and Leigh Mollenhoff

With this attachment:

Date: December 8, 2009
To: All Alders
From: Leigh Mollenhoff, 1501 Morrison Street (Landmarks Commission, 1970-1978)
David Mollenhoff, 1501 Morrison Street (Landmarks Commission, 1980-1987)
Subject: Edgewater Vote Must Be Based On City Ordinances

Remarkable, isn’t it, that some Madisonians must be reminded to observe the rule of law. That’s a favorite term of Western leaders when they lecture Third World governments on the benefits of civil society. Alas, such a lecture is necessary for the Edgewater Hotel project. The Wisconsin State Journal, in a banner headline atop a full-page Sunday editorial, urges citizens to rise up and call undecided alders. “Tell ‘em to vote ‘yes,” it screamed.

There is one serious problem with that exhortation: The Common Council today like the Landmarks Commission on November 30, must follow the rule of law embodied in the landmarks ordinance [Chapter 33.19 MGO]. And when a developer appeals a commission decision, the ordinance clearly says the council must base its findings “on the standards contained in the ordinance.” (Italics added.) All city council members and the mayor have taken an oath to uphold all ordinances.

So what’s the problem? Even the lowered hotel tower (the revised plan) can’t come close to passing standards established by the 1976 Mansion Hill Historic District ordinance. Nor does it have the right stuff to get a variance. Words and their dictionary meanings matter. At least they have until now. Much as project proponents would like to make the landmarks ordinance disappear, the Common Council can’t do this, certainly not with its integrity intact.

We find it surprising that such a sophisticated developer (with offices in New York, Chicago, Los Angeles, and eleven other large American cities) could read our landmarks ordinance and think that such a huge tower could somehow be exempt from the rules that everyone else has to follow. We find it even more astounding that this developer proposed in his original plan to build a tower in the street right-of-way—Wisconsin Avenue—something specifically forbidden by the 1965 street vacation ordinance.

So what choices does the Council have? Really, they are starkly simple? It can follow the criteria and standards clearly set forth by the ordinance and uphold the commissioners’ decision. Or it can concoct new definitions and reach conclusions wildly inconsistent with the ordinance. The “positive” Council vote sought by the Journal and others can only be achieved by getting a super majority of alders to flout the law.

Read more!

Are You Sick of This Yet Round Up

I am. I really want the final vote to be tonight (as long as it is safe for everyone involved) and I really hope no one reconsiders. Of course, if the appeals passes, it will be back for several more votes. (Um, I'm talking about the Edgewater in case you've been living under a rock.) I'll try my best to talk about something besides the Edgewater, but it'll be tough . . . .

A BLOGGER'S DILEMNA
Important things first. At first, I had to be at a WYOU meeting to discuss next years budget, but that has been cancelled. So now, I have to decide, do I join Dusty et al at Amy's Cafe for the drinking game, or bingo (thank you for the "Bruer calls a female Council member by her first name"), or do I show up and see all the good stuff you don't see on camera? Truthfully, I think the drinking game would result in no blog in the morning, it looks pretty harsh, especially the council break - that could be brutal. I'm torn. Dusty's party sounds like more fun.

MUSICAL CHAIRS
So, originally it was reported that Palm and Schumacher would be gone. Yesterday, the council members were informed of the following:

Due to a death in her family, Ald. Thuy Pham-Remmele will be absent from the city starting today, Monday, December 7 until further notice. (Please note that this absence will be updated as needed).


Ald. Pham-Remmele will not be in attendance at the Tuesday, December 8, 2009 Common Council meeting.

My condolences to Pham-Remmele and her husband.

I was also informed the following:

However, it is confirmed that Michael S. is returning to town to vote.

I suppose it is all very unpredictable given the snow, so we'll have to see who really shows up.

SPEAKING OF SNOW
Why is Tim Bruer so eager to make sure the meeting is not cancelled tonight? He must not have gotten a good response to this. I'm sure it is all about manipulating the vote.

NOT MUCH FAITH IN THE COUNCIL
Wow, what does it say that the new poll on my blog is running 75 - 80 against the council actually following the law? Is it my readers, or the small percentage of them that actually voted? Or does the public really have that little faith in the council?

SLOPPY COUNCIL SUPPORT
Yesterday the council members received a list summarizing the emails that went to allalders@cityofmadison.com. It is skewed significantly in support of the project. However, a quick review shows:
- Some were listed in support AND in opposition.
- Some people against are listed as being in support.
- The emails came from all over including Stewsbury, MA, Cedar Rapids, IA, Sauk Creek, Middleton, Fitchburg, Verona, Monona, Waunakee and Spring Green.
- Many are listed with their businesses (some with more than one person from teh same company) including Building and Construction Traces, Epic Life Insurance, Madison's, Building Trades, Hausman-Johnson Insurance, Chamber of Commerce, Alphagraphics, Professor of Zoology, Williams St. Art Center, Lindsay Stone & Briggs, Kelly Financial, Zebradog, Boardman Law Firm, Mansion Hill Inn, TDS Custom Construction, Mad City Style LLC, H&H Industries, WhoopDeDoo Productions, World Council of Credit Unions, HDR ONE Company, Badger Popcorn and the Edgewater.
- 25% did not indicate where they were from.
- Many listed with Madison addresses had a suite number attached to their address, indicating it was their work address not home address.
- Some who had testified on behalf of their businesses, didn't have their businesses attached. (I'm thinking of Downtown Hotels)

Do you really think the Zoology Department meant to weigh in on the project? It's kind of a bummer cuz it makes all that public input somewhat suspect and I'm not sure what it means. Were all those businesses in support, or just people using their work emails? It makes me want to disregard the document because its so sloppily done and seemingly inaccurate, but I can't because 235 people took the time to send in their opinion. Oh well, if you want your voice counted, email allalders@cityofmadison.com and hope they read the email, not just the summary.

VERVEER, "FED UP"
I don't know why, but it makes me giggle when Verveer actually gets mad. He's so even keeled so often - too often. Which is what makes his statements to the Isthmus interesting, he's too nice to say anything too critical. I think everyone knows that behind the scenes meetings happen, I don't think they know to what extent, which is likely what has Verveer talking. But there's something else here, that I pointed out on thedailypage forum, that is problematic. At what point, will the pursuit of getting this project passed cross the line for you. For some, its the TIF, for others it is the landmarks ordinance, but bring in the enviros, because if Verveer is right, their going after the Shorline Preservation Ordinance next:

Verveer says that besides anticipating the need to override the Landmarks Commission, the strategy team has focused on "having the Zoning Board of Appeals taken out of the equation" because the board was seen as a "danger" to the project.


"It's a 100% citizen body, no elected officials on the body, and their decisions are appealable only to a circuit court," says Verveer. "If Hammes wanted to prevail over an unfavorable ZBA ruling they would have to go to court, which would be difficult to overturn, generally, given past precedent."


Under current city rules, the Zoning Board of Appeals must issue a variance to allow Hammes to build so close to the water. The board has not yet acted and Hammes has not yet provided it with materials or measurements. Verveer says this is because there's talk about avoiding the board entirely by amending the shoreline preservation ordinance to exempt commercial buildings.


Says Verveer, "So all the way along, behind closed doors they have talked about how to get around the ZBA."

Regarding the comments that follow the article, if you want to look at campaign finance reports, you probably should be looking for all the conduit and business contributions here (and here and here). And if you want to know how Verveer knows, well . . . people talk. Too much. Too often. And nothing is a secret if you keep your eyes and ears open.

MORE SLOPPY STAFF WORK - "OWNER"
Ok, I really, really, really tried to find an answer to this one that would make some sense, and I couldn't. I asked another attorney who is relatively knowledgable in the way of the city and development process and their response was even more cynical than mine. Anyways, here's the question. Who is the owner for purposes of this language:

. . . After a public hearing, the Council may, by favorable vote of two-thirds (2/3) of its members, based on the standards contained in this ordinance, reverse or modify the decision of the Landmarks Commission if, after balancing the interest of the public in preserving the subject property and the interest of the owner in using it for his or her own purposes, the Council finds that, owing to special conditions pertaining to the specific piece of property, failure to grant the Certificate of Appropriateness will preclude any and all reasonable use of the property and/or will cause serious hardship for the owner, provided that any self-created hardship shall not be a basis for reversal or modification of the Landmark Commission’s decision.

A second question that was posed was did Hammes have standing to file the appeal. I think they did, because in that case, the language says:

An appeal from the decision of the Landmarks Commission to grant or deny a Certificate of Appropriateness under Subsection (5)(b) and (c) may be taken to the Common Council by the applicant for the permit.

The fact that they use two different terms "applicant for the permit" and "owner" indicates to me that they didn't intend for the "owner" to be loosely construed to mean the "applicant", but that isn't what Michael May emailed to the alders:

Folks:
I’ve received several emails concerned about the use of the word “owner” in the appeal section of the ordinances discussed in my recent memorandum. (Actually, the ordinance sometimes uses “applicant” and other times uses “owner.”)


The Hammes Co. has pursued the required certificate. My understanding is that they have an option or agreement to purchase the property, which is a sufficient property interest to pursue those approvals and the appeal before you tomorrow night. For purposes of applying the ordinance, you should consider Hammes Co. as the “owner.”

I'm not buying it. It's a rather loose interpretation with no back up and I searched and I couldn't find anything that would justify this conclusion. While I agree that they have sufficient property interest to pursue the approvals and appeal, I can't see how they are the "owner" for the balancing test. I can't tell if the city attorney didn't see it as two different questions, or if he didn't realize the distinction - or if the cynical response is the right answer.

SOMETHING BESIDES THE EDGEWATER
This one includes WYOU, Campaign Finance and Labor getting taken advantage of by big business. Check out how much money went into passing the "Cable Competition" Act or "Cable Con" as it has been labeled.

WATER RATES SKYROCKETING
A 22% increase on top of the recent 13% increase. Where's the taxpayer outrage here? Seriously, cuts to services at the city and county were rampant this year, and this gets little notice.

SPEAKING ABOUT GOVERNMENT BUDGETS
Are you feeling . . . .

Thanks to the smart ass who gave me the button! :)

THOUGHT FOR THE DAY
Someone, I don't remember who, posted this on facebook yesterday. I cut and pasted it cuz I liked it, but I thought it would be a good quote for the day.

Economic growth without social progress lets the great majority of people remain in poverty, while a privileged few reap the benefits of rising abundance. John F. Kennedy

Read more!

Hmmm . . . Rescheduled (Edgewater) Council Meeting?

This, could be interesting . . . and convenient. Perhaps Palm and Schumacher will be back . . . but who else might be missing?

Council Leadership has asked the I poll you on your availability to attend a rescheduled Common Council meeting in December. Please let me know by this afternoon if possible.

Given that the forecast is calling for a foot or more of snow on Tuesday night, we would like to know council members’ availability should the meeting need to be cancelled due to a snow emergency. Please respond whether you could attend a council meeting on:

Tuesday 12/15, 6:30pm
Tuesday 12/22, 6:30pm

Thank you.

Lisa Veldran, Administrative Assistant
Madison Common Council Office

Read more!

The City Attorney's Opinion on How To Decide on the Edgewater

The key to the Council's decision is . . .

Thus, the question comes down to whether the Council finds that “owing to special conditions pertaining to the specific piece of property,” failure to grant the Certificate “will cause serious hardship for the owner.”

Please note, this has nothing to do with the Mayor's claims in his blog.

I am very pleased that Edgewater Hotel developer Bob Dunn has decided to let the Madison City Council have the final say on his project. Dunn has now officially appealed the decision of the Landmarks Commission not to approve his project to the Council, which will take up his appeal next Tuesday. While Landmarks was constricted in what it could consider, the debate before the full Council can bring sharper focus to more basic questions about what is most important to us as a community.

Here's how the ledger shapes up on this proposal. On the plus side we have:

• Nearly 1,000 good-paying construction jobs in an economy where the unemployment rate in some trades is 30%.
• Over $1 million a year in new tax revenues to support our schools, city services, social services and more.
• Dramatically improved views of Lake Mendota.
• New life for the historic original 1940s building.
• Significantly increased public access to the lake.
• More hotel rooms and an amenity that the UW sees as a big asset close to its campus.

On the negative side we have:

• A building that some people feel is too big for the site.

When I weigh these considerations, the conclusion is clear. With so much to offer I can live with a building that might be a little bit bigger than some would want. Do we really want to forgo all these benefits and send a strong anti-business signal to others who want to invest in our community simply because we don't like big buildings? Can we look in the eyes of hundreds of unemployed construction workers and tell them that their families should go without a paycheck because some think the building is a little too big?

I don't think so. But the Landmarks Commission was constrained by a vague and narrowly drafted ordinance that didn't give them the leeway to look at broader community interests. That is precisely the City Council's job. And when they look at this project in its totality, with all its benefits weighed against its small costs, I hope they'll join me in concluding that we should move ahead.

Um, Mr. Mayor, what does that have to do with the even more narrow question the city attorney says is before the council? The full city attorney opinion is here. I didn't see the city attorney mention any of the following as being relevant:
• Nearly 1,000 good-paying construction jobs in an economy where the unemployment rate in some trades is 30%.
• Over $1 million a year in new tax revenues to support our schools, city services, social services and more.
• Dramatically improved views of Lake Mendota.
• New life for the historic original 1940s building.
• Significantly increased public access to the lake.
• More hotel rooms and an amenity that the UW sees as a big asset close to its campus.

I think the Mayor is dead wrong on this. And I will remind folks again, Hammes Company is not the owner of the property. We haven't heard from the owners or about their hardship, this will require testimony from them about the hardship it will cause to them if Hammes can't go forward with the project. It's a very focused, very narrow decision that they need to find in addition to finding that they meet all the criteria for the certificate or variance. All the details are here. And sadly, the legistar file and the information the city has on-line for the city council right now doesn't include all the information in my post, and that is what was before the Landmarks Commission and should be in front of the council. (They fixed it.) Read more!

Breaking Down How the Council Decides if they Should Overturn the Landmarks Commission

The decision before the council on Tuesday in NOT whether they should approve the Edgewater project, it is only a question of if they should reverse the Landmarks Commission decision. If they overturn the Landmarks decision, the project still has a long line of exceptions and variances and changes they need to get/make to laws and ordinances in order to get their project approved.

The way I understand it, they still have to go through at least the following processes if not more:
- Planned Unit Development Zoning Approval (Urban Design Commission, Plan Commission, Common Council)
- Conditional Use Permit – Capitol View Height Penetration (Plan Commission)
- Conditional Use Permit – Waterfront Development (Plan Commission)
- Waterfront Setback Variance (Zoning Board of Appeals)
- Amendment of the 1965 Wisconsin Avenue Vacation Ordinance (Plan Commission, Common Council)
- TIF Boundary Amendment (Board of Estimates, Joint TIF Board, Plan Commission, Common Council)
- TIF Request (Board of Estimates, Common Council)
- Change of Wisconsin Avenue street grade (Council and other committees)
- Subterranean Lease and/or Encroachment Agreement (Plan Commission, Common Council)
- Developer Agreement (for Public Spaces / Right of way (I think this is staff only unless council directs otherwise, they would likely include requirements they want to see in the PUD approval as conditions of approval.)
- Management Agreement (for Public Spaces) (Also likely a staff function with direction through conditions in the PUD unless the council asked to see it again)

Here's how I understand the limited decision before the council on Tuesday and how I would break it down.

FINDING THE ORDINANCE
(Skip this section if you don't care about looking directly at the ordinance or already know how to find it - I can't figure out how to link to it in a meaningful way. I quote it extensively below.)

MGO 33.19 is where you find the Landmarks ordinance. In order to find it on-line I usually go to the city's website, go toward the bottom of the front page where is says "most requested services", slide the menu down and click on Madison General Ordinance. That will then take you to some service that has our ordinances on-line. They get updated quarterly, so they aren't always the most updated source, but in this case, no changes have been made in quite some time, so we should be safe. Once you get there click on "Madison Code of Ordinances". Then you'll get a screen with several panes. Go to the left hand one and scroll down until you see chapter 33, "Committees, Board and Commissions". After clicking on that, go to the right hand panes and use the pdf search function and search "landmarks". The first hit will be the title of the ordinance, the second will actually be the ordinance. Otherwise, you can just go to page 26 where it starts. It goes from page 26 - 55.

You might wonder why I explained that . . . but its out of shear exhaustion from explaining it over and over and over and over to people who can't find what they need in our ordinances.

WHY IS THE LANDMARKS COMMISSION INVOLVED
The ordinance requires in 33.19(5)(b) on page 28 that:

(b) Regulation Of Construction, Reconstruction and Exterior Alteration.
1. Any application for a permit from the Director of the Building Inspection Division involving the exterior of a designated landmark, landmark site or structure within an Historic District shall be filed with the Landmarks Commission. (Am. by Ord. 8081, 7-29-83; ORD-08-00109, 10-7-08)

The ordinance goes on to say that:

2. No owner or person in charge of a landmark, landmark site or structure within an Historic District shall reconstruct or alter all or any part of the exterior of such property or construct any improvement upon such designated property or properties within an Historic District or cause or permit any such work to be performed upon such property unless a Certificate of Appropriateness has been granted by the Landmarks Commission or its designee(s) as hereinafter provided.

[omitted language about the designee . . . ]

Unless such certificate has been granted by the commission or its designee(s), the Director of the Building Inspection Division shall not issue a permit for any such work. (Am. by Ord. 8081, 7-29-83; ORD-08-00109, 10-7-08)

Since this site is in the Mansion Hill Historic District (map) they are required to apply for a Certificate of Appropriateness.

REQUESTING A CERTIFICATE OF APPROPRIATENESS OR VARIANCE
How they apply for a certificate of appropriateness can be found here. There are several options for them as follows:

How to Obtain a Certificate of Appropriateness for Exterior Renovation and Alterations and New Construction
- General Information
- Procedure for Obtaining a Certificate of Appropriateness for Exterior Renovation and Alterations
- Procedure for Obtaining a Certificate of Appropriateness for New Construction
- How to Obtain a Certificate of Appropriateness for a Demolition
- Procedure for Seeking a Variance from the Landmarks Commission

WHAT THEY SUBMITTED/WHAT INFORMATION WAS PROVIDED TO DECISION MAKERS THUS FAR
JULY 15th - "INFORMATIONAL PACKAGE" (the old version of the project)
I'm unclear if this was intended to be an application. At no point do they request a Certificate of Appropriateness for Exterior Renovation and Alterations, New Construction or Demolition and they don't ask for a variance.

AUGUST 10th PUD SUBMITTAL PACKAGE (old version of the project)
This submission, on page 12 says it is for:

The Project is submitted for the review and consideration of the City to receive
the following grants and approvals:
- Planned Unit Development District (“PUD”) – GDP/SIP
- Conditional Use Permit - Capitol Height Encroachment
- Other Grants and Approvals as Required by the City of Madison

So again, it is unclear if they are applying for a Certificate of Appropriateness for Exterior Renovation and Alterations, New Construction or Demolition and they don't ask for a variance. And in the 63 pages of the submittal I didn't see them ask for a Certificate of Appropriateness or Variance at any point. And, the submittal is incomplete with the 7 of the exhibits at the end of the document left where they promised to insert information later.

AUGUST 19th STAFF MEMO
In this memo, they state that the applicant applied for a Certificate of Appropriateness, but no variance. The staff laid out the criteria they had to follow, provided the list of what other city approvals were needed, state that the application was incomplete and gave them a list of additional materials that they requested from the developer that were to be presented to the Commission on August 24th. If you read any one document at this point, this would be the one I recommend, it has alot of information that would be helpful if you are trying to understand what Landmarks needed to approve the project, even tho this is still the old project, it list alot of valuable information.

AUGUST 20th STAFF MEMO
Here they explain additional information was submitted, but it was late and they didn't have time to review it.

AUGUST 20th LANDMARKS MATERIALS AND HERE (Still the old project)
If you compare what they submitted compared to the list the staff requested. This is the list staff requested:

1. Height/Massing studies of new tower
• Visually Related Area: show existing/proposed buildings from project in context
with all buildings within the visually related area to demonstrate the proposed
project meets section 33.19(10)(e)1-5 (Guidelines Criteria for the Mansion Hill
Local Historic District) and other applicable parts of the Landmarks Ordinance
Chapter 33.19. Provide plans that are to scale and fully dimensioned. [MISSING]
• A 3-D model of the proposal including the context of nearby properties may assist
in this evaluation.[PROVIDED AT THE MEETING, GIVEN TO STAFF A MONTH LATER]
2. Perspective views requested by the Landmarks Commission:
• Views down Wisconsin Avenue[MISSING]
• Views from Langdon[MISSING]
• Views from Pinckney/Gilman[MISSING]
• Views from Lake Mendota[MISSING]
• Views down staircase towards Lake Mendota[MISSING]
3. Alterations to Existing Buildings (both original tower and 1970’s addition)
• Proposed alterations to existing structures are referenced in section 33.19(10)(d), which refers back to 33.19(5)(b) and (c)
• Existing conditions vs. renovations/alterations for the following:
- Dimensioned site plans
- Dimensioned elevations/cross sections, colored with shadow lines
- Materials selections
• Details on two connecting bridges
• Information on the added story on the original tower
• Interface between the public staircase and the existing buildings
4. New Tower and Grand Stair / Public Terrace (plaza above 70’s addition / lakefront area
• Dimensioned elevations/cross sections, colored with shadow lines
• Materials selections
• Grading plan
5. Design Details:
• Design details for elements such as windows, doors, railings, fencing, signage,
lighting, canopies, landscaping and street furniture will need to be approved prior
to the issuance of a Certificate of Appropriateness.[MISSING]
• A larger sized set of plans, or enlargements of some elevations may help to
illustrate some of the details more clearly.[UNCLEAR IF PRESENTED]

I may have been generous in saying some of this was provided or perhaps, without explanation, I missed something, but it was still pretty incomplete.

AUGUST 24 PRESENTATION TO LANDMARKS
In the 82 pages, I don't see them directly addressing the criteria for a certificate of appropriateness or for a variance. You probably want to check out the Thelma and Louise animation going down Wisconsin Avenue . . . very entertaining. I'm not sure who would ever see that perspective or what it was supposed to show. Probably good it is still labeled "draft".

NOVEMBER 16th LANDMARKS SUBMITTAL - NEW BUILDING
Finally! 18 days ago, they submitted something that tried to address some of the ordinance requirements! Not in as complete of a fashion as I would like, but much better. With Thanksgiving coming up, there not much time to review it and get it to the commission, but, its a step forward.

NOVEMBER 19TH LETTER - REQUEST FOR VARIANCE
Again! Finally! The requested the variance which means they probably just figured out that they had major issues with the ordinance. That should have been figured out and discussed and addressed long, long, long ago.

NOVEMBER 18TH INFO FOR JOINT LANDMARKS/URBAN DESIGN MEETING, AND HERE.
The first link which is section 1 - 3 are comparison between the old and the new projects and a Q&A on their view of how the project is consistent with the Landmarks Ordinance. The second link is their Q&A on issues they see with Urban Design criteria.

MONSTER HANDOUT FROM THE 30TH, AND HERE.
This was what was handed to the Landmarks Commissioners the night of their 7 hour meeting, at least the council will have some time to look at it in advance. Tho, by this point, everything is just starting to look the same and blur together for me, they have handed out so much info, much of it duplicative. There is some new info.

FINAL STAFF REPORT
Again, if you read only one thing, the staff report should be it! It summarizes quite a bit of info.

OTHER INFO
- Letter from Nation Trust for Historic Preservation and CNI President
- Photos from the tour.
- Written public Comment from 11/25 (all against)
- 37 more pages of written comments (all against), including concerns from Tenney Lapham Neighborhood Association (2 national historic districts), Marquette Neighborhood Association (2 of Madison's Historic Districts), David Mullenhoff, an alternative plan from architect James McFadden, comments from the Mansion Hill Steering Committee with photos of the neighborhood and pictures of their model.

WHAT THE LANDMARKS COMMISSION WAS REQUIRED TO LOOK AT FOR A CERTIFICATE OF APPROPRIATENESS
To grant a certificate of appropriateness, this is what the 33.19(5)(b)4.c. says:

4. Upon filing of any application with the Landmarks Commission, the Landmarks Commission shall determine:

[cut part on landmark and landmark sites]

c. Whether, in the case of any property located in an Historic District designated pursuant to the terms of Subsection (6)(d) hereunder, the proposed construction, reconstruction or exterior alteration does not conform to the objectives and design criteria of the historic preservation plan for said district as duly adopted by the Common Council. (Sec. 33.01(4)(b)3. Renumbered to 4. by Ord. 11,070, 12-6-94)

So, next, we have to look at the "objectives and design criteria of the historic preservation plan", because 33.19(5)(b)5 says:

5. If the commission determines Subparagraphs a., b. and c. of Paragraph 4. above in the negative, it shall issue the Certificate of Appropriateness . . .

Admittedly, that is a bit confusing with the double negative.

So, when looking at 33.19(6)(d)1. it explains that the plan is in ordinance form:

For preservation purposes, the Landmarks Commission shall select geographically defined areas within the City of Madison to be designated as Historic Districts and shall, with the assistance of the City Department of Planning and Community and Economic Development, prepare an historic preservation plan in ordinance form for each area . . .

So, next we look at page 37. Section (e) in 33.19(10)is the Guideline Criteria for new Development in the Mansion Hill Historic District

1. The gross volume of any new structure shall be visually compatible with the buildings and environment with which it is visually related (visually related area).
2. In the street elevation(s) of a new building, the proportion between the width and the height in the facade(s) shall be visually compatible with the buildings and the environment with which it is visually related (visually related area).
3. The proportions and relationships between width and height of the doors and windows in new street facade(s) shall be visually compatible with the buildings and environment with which it is visually related (visually related area).
4. The rhythm of solids to voids created by openings in the facade of the new structure should be visually compatible with the buildings and environment with which it is visually related (visually related area).
5. All new street facades should blend with other buildings via directional expression. When adjacent buildings have a dominant vertical or horizontal expression, this expression should be carried over and reflected.

WHAT THE COMMISSION FOUND REGARDING THE CERTIFICATE OF APPROPRIATENESS
Basically, they didn't even discuss criteria 2 - 5. They just got completely hung up on, and could not find that:

1. The gross volume of any new structure shall be visually compatible with the buildings and environment with which it is visually related (visually related area).

The staff report has information on what is considered to be in the visually related area, complete with photos and maps. This is what they had to look at:

 

 

Do you think those are visually compatible with what you have seen of the 8 stories of the building that stick up above Wisconsin Avenue?

If the photos alone don't do it for you, here's some data about the gross volume:
Kennedy Manor - 1 Langdon - 589,800 cubic feet
2 Langdon - 215,000 cubic feet
10 Langdon - 107,100 cubic feet
12 Langdon - 159,000 cubic feet
Edgewater - 1,692,200

That makes the Edgewater between 2 and 15 times the size of the buildings in the area to be compared. It's no wonder the Landmark's commission couldn't find it met the requirements - but they could still look at doing a variance . . . more details on what they discussed here.

WHAT THE LANDMARKS COMMISSION HAD TO LOOK AT TO ALLOW A VARIANCE
See page 54, 33.19(15):

(a) Authority. The Landmarks Commission may vary the criteria for review of additions, exterior alterations or repairs for designated landmarks, landmark sites and improvements in any Historic District and the criteria for new construction in any Historic District in harmony with the general purpose and intent to preserve the historic character of landmarks, landmark sites and of each Historic District only in the specific instances hereinafter set forth and only if the proposed project will be visually compatible with the historic character of all buildings directly affected by the project and of all buildings within the visually related area.

The variance procedure and standards are designed to prevent undue hardships caused by application of the strict letter of the regulations of this chapter and to encourage and promote improved aesthetic design by allowing for greater freedom, imagination and flexibility in the alteration of existing buildings and the construction of new buildings within an Historic District while ensuring substantial compliance with the basic intent of the ordinance

This confused me to some extent, as it requires them to find that it is visually compatible with the buildings in the visually related area, which they just found it wasn't . . . but, it did expand the area they could look at by including not just those in the visually related area, but also those directly affected.

The standards are set out in the ordinance at (15)(c):

(c) Standards. The Landmarks Commission shall not vary the regulations of this ordinance unless it makes findings of fact based upon the evidence presented to it in each specific case that one or more of the following conditions is present:
1. The particular physical characteristics of the specific building or site involved would result in a substantial hardship upon the owner as distinguished from a mere inconvenience, if the strict letter of the regulations were to be carried out, provided that the alleged difficulty or hardship is created by this ordinance and has not been created by any person presently having an interest in the property.
2. In the case of the alteration of an existing building, the proposed design would incorporate materials, details, or other elements not permitted by the ordinance but which can be documented by photographs, architectural or archaeological research or other suitable evidence to have been used on other buildings of a similar vintage and style in the Historic District in which the building is located, provided that the project will not destroy significant architectural features on the building.
3. In the case of new construction, the proposed design incorporates materials, details, setbacks, massing or other elements that are not permitted by the ordinance but which would enhance the quality of the design for the new building or structure, provided that said new building or structure otherwise complies with the criteria for new construction in the Historic District in which the building or structure is proposed to be located and provided further that it would also have a beneficial effect on the historic character of the visually related area.

Additionally, they can only grant a variance for the following things:

(d) Authorized Variances. Variances shall be granted by the Landmarks Commission only in accordance with the standards set forth in (13)(c) [sic] above, and may be granted only in the following instances:
1. To permit residing with a material or in a manner not permitted under this chapter.
2. To allow additions visible from the street or alterations to street facades which are not compatible with the existing building in design, scale, color, texture, proportion of solids to voids or proportion of widths to heights of doors and windows.
3. To allow materials and/or architectural details used in an alteration or addition to differ in texture, appearance and design from those used in the original construction of the existing building.
4. To permit the alteration of a roof shape otherwise prohibited under this chapter.
5. To permit the use of roofing materials otherwise prohibited under this chapter.
6. To allow use of materials for new construction which use would be otherwise prohibited under Sec. 33.01(12)(f)1.b.

WHAT LANDMARKS DECIDED ABOUT THE VARIANCE
You can see what they discussed here, as there are many aspects to this section, but they still couldn't find there could be a variance. Therefore the certificate was denied.

WHAT HAPPENS WHEN DENIED?
33.19(5)(b)5. says:

. . . Should the commission fail to issue a Certificate of Appropriateness due to the failure of the proposal to conform to the above guidelines, the applicant may appeal such decision to the Common Council. In addition, if the commission fails to issue a Certificate of Appropriateness, the commission shall, at the request of the applicant, cooperate and work with the applicant in an attempt to obtain a Certificate of Appropriateness within the guidelines of this ordinance. (Am. by Ord. 11,648, 8-20 & 8-26-96; ORD-08-00109, 10-7-08)

So, appeal to the council wasn't the only option. They could have continued to work with the Landmarks Commission. I never heard anyone mention that as an option, except the Landmark's Commission themselves. They even passed a motion at the end of their last meeting to that effect. While they didn't have immediate answers at the time, the expressed interest in continuing to work with them.

Here's the process for the appeal. 33.19(5)(f)

(f) Appeal. An appeal from the decision of the Landmarks Commission to grant or deny a Certificate of Appropriateness under Subsection (5)(b) and (c) may be taken to the Common Council by the applicant for the permit. In addition, an appeal from the decision of the Landmarks Commission to grant or deny a Certificate of Appropriateness for any building or demolition project requiring a public hearing, whether this determination is made upon receipt of the application for a demolition permit or at the end of the one-year period in a case where action on the application has been suspended, or to suspend action on a demolition application, may also be taken to the Common Council by the Alderperson of the district in which the subject property is located, or by 20% of the property owners within 200 feet of the subject property.

Such appeal shall be initiated by filing a petition to appeal, specifying the grounds therefore, with the City Clerk within ten (10) days of the date the final decision of the Landmarks Commission is made. The City Clerk shall file the petition to appeal with the Common Council . . .

The grounds they stated are kind of like two kids fighting  . . . "yes you did", "no I didn't", "yes you did" etc, etc etc.  It would have been better if they had stated what their specific argument is.  Was it about gross volume?  the definition of "environment"?, the visually related area? etc? etc?  I'm not sure what their ground are.


WHAT THE COUNCIL MUST CONSIDER UPON APPEAL
When considering the appeal, the council must follow this ordinance 33.19(5)(f)

. . . After a public hearing, the Council may, by favorable vote of two-thirds (2/3) of its members, based on the standards contained in this ordinance, reverse or modify the decision of the Landmarks Commission if, after balancing the interest of the public in preserving the subject property and the interest of the owner in using it for his or her own purposes, the Council finds that, owing to special conditions pertaining to the specific piece of property, failure to grant the Certificate of Appropriateness will preclude any and all reasonable use of the property and/or will cause serious hardship for the owner, provided that any self-created hardship shall not be a basis for reversal or modification of the Landmark Commission’s decision.

Key elements of their decisions are:
- Their decision has to be "based on the standards contained in this ordinance". So, they have to look at the standards for the Certificate of Appropriateness and the Variance - same as the Landmarks Commission looked at.
- They have to balance the "interest of the public in preserving the subject property" with the "interest of the owner in using it for his or her own purposes". This is interesting in that the "owner" is not Hammes Company, but the Faulkners and National Guardian Life.
- They also have to find that "failure to grant the Certificate of Appropriateness will preclude any and all reasonable use of the property and/or will cause serious hardship for the owner". It also goes on to say that it is provided that "any self-created hardship shall not be a basis for reversal or modification of the Landmark Commission’s decision."

CONCLUSION - LAW SUIT?
So, in all of that, in all those things that they have to consider, the criteria for the certificate of appropriateness, the standards for the variance and reasons it can be granted and the additional criteria added in appeal about owner, I'm having a hard time seeing how the council, if it follows the ordinance, can reverse the Landmark's Commission and if they do, I don't see how everyone doesn't end up in court.

I know people want to see the Edgewater renovated and approved, but we also have laws in place. The Landmark's Commission couldn't just ignore the laws, and neither should the council. When people are elected, they sign an oath to uphold the laws of the City of Madison, breaking that oath shouldn't be taken lightly.

I think its time to go back to the drawing board and to work with and have a dialog (give and take) with the Landmarks Commission, city staff and the neighbors in the historic district.
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