By Kim McDarison 

Members of the Whitewater Plan and Architectural Review Commission (PARC) on Monday voted to approve a conditional use permit and site plan for a 128-unit apartment complex to be built on the city’s east side.

The items approved Monday were the same as those approved last month, albeit with the removal of a modification prohibiting the developer from accepting Section 8 vouchers and Section 42 housing tax credits. New language also was added to the conditions of the permit, stipulating that the developer must provide a gate, blocking access to the public of an emergency egress. The gate would be kept locked, with the city’s fire and EMS professionals given access to the key.

The conditional use permit and site plan were approved on Monday by a vote of 5-2, with commission chairman Neil Hicks and commissioner Mike Smith voting against the measure.

Last month, the permit, with the language prohibiting Section 8 vouchers and Section 42 tax credits, was approved by a vote of 4-3, with Hicks, Smith and commissioner Carol McCormick voting the measure down.

During the meeting, the floor was opened several times by acting chairman Tom Miller to members of the public, a majority of whom voiced upset with the project, with many calling for the developer to decrease its size.

The two-phased development will place eight 16-unit buildings on just over 11 acres of land.

Hicks, who attended the meeting remotely, asked Miller, who attended in person, to conduct the meeting in his place.

A need to revisit the site plan and conditional use permit was determined after members of the city’s staff asked two attorneys, Whitewater City Attorney Jonathan McDonell and an attorney recently hired to advise members of the city’s Community Development Authority (CDA) Rick Manthe, to analyze the previously approved modification with regards to state and federal fair housing laws.

Both attorneys submitted statements to Whitewater City Manager John Weidl, noting that the modification, restricting the developer from accepting Section 8 housing vouchers and Section 42 tax credits was “not legally enforceable,” and in violation of Wisconsin’s Fair Housing Act.

Both attorneys attended Monday’s meeting and answered questions from commission members.

Manthe stressed that while he responded to the city manager’s request to analyze the modification, he was not acting in an advisory function on Monday for the CDA.

Legal ramifications 

During the meeting, Whitewater Economic Development Director Taylor Zeinert reminded commissioners of their purpose when reviewing the site plan and conditional use permit.

She said that following last months PARC meeting, concerns were raised that the modification placed on the conditional use permit was in violation of the law.

She asked each of the attorneys present to explain their analyses which were included in the meeting packet.

McDonell said that after he looked into the matter, he found that Wisconsin’s Fair Housing Act “is more stringent than the federal Fair Housing Act, where, essentially, it says that you cannot limit, based on lawful sources of income.”

The two items addressed in the previously approved modification restricted two lawful sources of income: Section 8 vouchers and Section 42 tax credits, he said.

Therefore, he said, he came to the conclusion that having any sort of limitations on the development from accepting Section 8 or Section 42 vouchers would not be enforceable.

Manthe said that the Wisconsin Legislature, when placing its framework regarding conditional use permits, “took a lot of discretion away from local governments.” He said the framework stipulates that municipalities must adhere to their zoning ordinances when considering conditional use permits.

“Basically, the Legislature has made clear that cities and their conditional use ordinances have to be followed as much as possible,” Manthe said. 

Would the commission rule outside of the city’s ordinances, the decision would be subject to legal challenge, he added.

For municipalities, he described the process as one in which a commission is tasked with adhering to a “check list.” 

“So if the developer checks all the boxes, if they are getting a conditional use, the city has to issue that conditional use permit,” he said, unless the body can show “substantial evidence,”  which he described as providing facts of information that a reasonable person would agree did not satisfy the conditional use framework.

He said personal preference or speculations would likely not pass as reasonable, measurable, substantial evidence.

“Once the applicant meets zoning standards, it’s really difficult to deny a conditional use permit. It’s unfortunate, but that’s just the way the Legislature has restricted local governments,” Manthe said.

Hicks asked the attorneys to explain where in the process the commission stood.

McDonell said the commission, with regards to approving the development’s site plan review and conditional use permit was “back to square one.” 

He said the commission would need to consider and approve it again, considering, he said, that the condition earlier placed on the conditional use permit was found to be “not legally sound.”

Zeinert described the situation as “a big legal jumbled mess.”

Manthe said a motion to reconsider the permit and site plan review was an appropriate next step.

Commissioner Marjorie Stoneman moved that the commission reconsider approval of the conditional use permit and site plan review.

Public comments

Following comments from the attorneys, Miller opened the floor to public comments.

Several residents living near the proposed development site stressed concerns similar to those brought before the commission last month. Residents said they were concerned about increased traffic in their neighborhood, and a potential, with more people living nearby, for an increase in crime.

One member of the public said she believed Miller needed to recuse himself from voting, citing his relationship to Bonnie Miller, his wife, who serves as the city’s administrative assistant for Economic Development.

Others said they were upset with the city’s decision to use tax incremental financing (TIF) to incentivize the project, with one resident pointing to his concern that his taxes would increase to support an increased need for fire and EMS services, while his home value, as a matter of its proximity to the proposed development, would go down.

During public comments, several city officials, a former city official, and a Wisconsin Assemblyman arrived at the public podium.

Addressing the commission, CDA member Jeff Knight said that he was among three out of seven CDA members who did not vote in favor of the development agreement for the Jakes Way project when it came before that body.

Knight said that he felt the project was “rushed,” saying: “We had no idea about the total amount of dollars the city was putting in the project, which turns out to be $5.1 million. You compare that to a project in Madison, we are paying about $40,000 per apartment and Madison’s doing $11,000.”

Knight said he did not object to the idea of the development, but he did “have a problem with the size of it.”

He said the footprint of the development within the proposed neighborhood did not serve the community.

Additionally he said, proper consideration had not been given to traffic on the city’s east side. 

He said plans had once been developed to create a boulevard that would move traffic from the Bluff Road area to Milwaukee Street.

“Nobody’s talked about the transportation that was originally planned on the east side,” including, he said, “finishing that road up to Milwaukee, which should be done, and in light of another project that is being discussed that could also affect that area on Bluff Road. You’re deciding to put a lot of sausage in the package, and without really going through the entire process of how the road should go.”

He said the CDA changed the plan for the boulevard after pricing land within the city.

Said Knight: “They looked at the cost and quite a bit of the land on one side of the road was wetlands. The thought was you put all your engineering costs in the road and you build it and then you get back up the price of land. The decision was that you would be well underwater in the industrial park unless they redesigned  the roads. That’s when they moved the road over to Howard … and that way you avoided all the wetlands.” 

He added: “The reason I think this (housing development) is premature is you put so much money into the incentive package to build, there’s no money left on the table to help put the infrastructure in with that TID (Tax Incremental Financing District). I think that’s a serious error. And I do believe that this project is significantly too big for the area.”

He said he had “a hard time” understanding how the development could go forward without the initial traffic study that, he said, the CDA originally used when it did “the site study.”

He suggested that the commission “shrink the (housing project) size down just a little bit.”

Responding to Knight’s comments, Zeinert said she wanted to remind the commission, as she did during its last meeting, that the body has no authority or control over the city’s usage of TIF.

She said the body’s job is to determine if the project meets the stipulations for a conditional use permit.

Smith, addressing Zeinert, said: “I appreciate your comments — you know the flip side of that argument is that the public never had the chance to discuss the TIF with the city.” 

A resident of Jakes Way said he agreed that the project was too big for his neighborhood.

“There is no way to get out of here,” he said, suggesting the development would be better placed “somewhere out on Highway 12.”

The resident called information shared last month by Whitewater Director of Public Works Brad Marquardt, who said the roads in the area were able to meet increases in traffic, “ridiculous.”

Another resident of Jakes Way told commissioners: “I love my city.”

She described Whitewater as “small and cozy.”

She described a large development in her neighborhood as “scary.”

She said that while she works in Madison, she chose to live in Whitewater to avoid looking at a large cityscape.

She asked the commission to consider making the development smaller.

Among her concerns, she listed “police response,” numerous trash and recycling bins, issues with parking, loud music, and concerns with “our sewer and water.”

Whitewater resident Jill Gerber said she is a former member of the Whitewater Common Council, and an employee at the University of Wisconsin-Whitewater. Additionally, she said, she had been reading the newspapers, and was receiving comments from citizens and members the general public.

She said she wanted to remind the commission that while some on the panel were former council members, and council members, and may have represented constituents within certain sections of the city, “we have to think of the city as a whole, and what’s best for the city.”

She advocated for limiting the size of the Jakes Way housing development, suggesting that the developer consider placing eight units within each building instead of 16.

Said Gerber: “Overall I would choose it not to happen, but I think we are beyond that point, so I would like to see it just reduced down to the eight units.” 

Additionally, she said: “I do feel like some of you have a conflict of interest.”

She said there were some on the board who have “information that the people don’t have.”

She said she believed the new development would place a burden on the city’s emergency resources.

Further, she said: “When I was on the council, there was no study that said we needed more apartments. You have your last study that does. I think if you want to find the company that will give you what you want to say, you can find that.

“But there’s been nothing beforehand that ever said we needed more apartments. We needed single-family homes, and we needed homes for the elderly. I don’t think homes with steps is going to be something for the elderly.” 

Gerber said she believed people may, in her opinion, falsely believe that university employees are “paid quite well. I tend to think that’s not true. We are paid quite low compared to all the other universities in the state system.

“I don’t think salaries in our community can fill those apartments, which is going to leave them empty.” 

At the public podium, Rep Scott Johnson said he heard at the last meeting issues brought up of “crime potential,” and, he said, “you tried to outlaw or restrict low income, college students, and it seems that, in complying with the law, you are going to have to now allow that potential to take place. And it seems that you are in an upscale neighborhood, and I’m still fascinated by the fact that this community finds a need to augment the upper 15% of your rental market. If you had the employees already in your community that were without that housing, then that might be one issue, but I think your public funds can be better rewarded bringing jobs to the community that would actually pay the employees that you wish to have, than trying to build housing for employees that may not exist.” 

City councilman and an alternate member of the PARC Brian Schanen, addressing the commission from the public podium, said:  “I want to reiterate the purpose of the PARC. It was an understanding that I had had early on when I was a member of joining the PARC, and kind of more confirmed now with the (legal) memos tonight, that the PARC functions as a body to look through the specific zoning criteria and making sure that setbacks are met, etc., so that private developers are able to do with private land as they see fit.

“And so, I’m going to say, make sure to ask (contracted code enforcement and zoning administrator) Allison (Schwark) about specifics on the lot line. I know, for example, one of the things that was brought up last time, as well as tonight, was density of the units and how those fit within specific city guidelines. Now that’s not saying that there’s agreement or not as to where those parameters are set, but that is the code of ordinance that the city is using when developers are looking and setting their plans.”

Panel discussion

Following public comments, Schwark, who attended the meeting remotely, told commissioners they were once again being asked to consider a conditional use permit and site plan review for the Slater development planned to bring a 128-unit apartment complex to the city’s east side.

She recommended that the board remove the condition restricting the use of Section 8 vouchers and Section 42 tax credits, and keep all other conditions as approved last month.

During the discussion, commissioners unanimously approved two motions — one to reconsider the approval of the site plan and conditional use permit, and one to add a condition to the permit that the developer provide a gate across a emergency access egress — before voting 5-2 to approve the site plan approved last month, along with a gate, and conditional use permit without the modification restricting Section 8 vouchers and Section 42 tax credits.

During the discussion, Hicks said he had reviewed the meeting minutes from last month and noticed that his recommendation to add a gate to the emergency egress on Bluff Ridge Drive had not been included among conditions of the conditional use permit.

He asked the board to amend its motion to include his recommendation as a condition of the permit.

Stoneman added the recommendation as a condition within her motion to reconsider the site plan and permit.

Smith asked about the status of a traffic study.

Zeinert said that during the commission’s last meeting, Marquardt addressed the board, offering what she said was his “professional expertise, and saying that the road would be able to adhere to the new visitors and people who live in this complex.”

Smith asked for supporting data.

Said Zeinert: ”I know that they have previously looked at the Wisconsin Department of Transportation and I believe that’s outlined in his memo.” 

Schwark said she thought “it would not be a bad idea” to add Hicks’ suggestion to gate an emergency access road, which, according to documents provided within the meeting packet, was proposed by the fire department. Hicks said the gate would be used to prohibit the public from using the emergency access point as a regular egress, keeping the entry point available as an emergency-only access to be used by the city’s emergency services at their discretion.

During the discussion, members of the public asked to speak.

In response, Miller reopened public comments.

A resident said she thought it unfair that commissioners could add things to the proposal.

“This isn’t what you voted on to begin with,” she said, adding: “I don’t think this is fair. Just add, subtract, we don’t have any say.” 

Zeinert asked McDonell to verify that the discussion taking place was “within the purview” of the PARC.

McDonell said the commissioners could add conditions.

Gerber said she  believed a locked gate at a point of egress would be used by residents as a place to park.

She suggested city staff find a way to restrict parking from the area.

She wondered if the city could enforce such code on private property.

In advance of the vote to approve the conditional use permit and site plan for the Slater development, McCormick, addressing those in attendance, said she would vote ‘yes,’ but wanted residents to know that their complaints did not “fall of deaf ears.”

“I understand the complaints, but according to our commission, because requirements are made, it is our responsibility to work past this. I will say ‘aye’ just for that reason.”

Miller, too, offered some comments before he voted, saying, he, too, would vote ‘aye.’

“I asked the city attorney if he thought that I had a conflict of interest and he said he didn’t think I did. And just to clarify, my wife and I do not discuss city things that are going on like this building project, and, besides, she doesn’t tell me how to vote,” Miller said.

Prior to casting his vote, Commissioner Lynn Binnie said: “I’m not insensitive to the comments and concerns that have been raised, but the reality is, number one, the CDA put us in this situation and there is absolutely nothing we can do about TIF.

“It’s not true that the public didn’t have an opportunity to comment on that, it was, I’m sure, noticed, just like any other decision for the public. It, apparently, was not noticed by the public, but it was legally noticed and consequently the public did have an opportunity to comment on that decision.

“Secondly,” he added, “we are also in a position that the state has put us in, the Legislature, by restricting so highly our ability to oppose the conditional use permit. In spite of the concerns that we’ve heard, I cannot come up with anything that would legally qualify as a reason not to approve this conditional use permit.” 

He said the applicant has “checked the boxes to comply with our current ordinances …”

Binnie said he was concerned with postponing the decision because the commission and the city has requirements within its ordinances, and likely, he said, within state statutes, “that require us to make a decision within a certain time frame unless the applicant agrees to a postponement for that decision.”

He said he suspected that deadline was looming since the board “already dealt with this matter a month ago.”

Smith, making comment before the vote, said: “Today I … called up municipalities and discussed this situation. And they confirmed it: they said what our lawyer here today said, … so it is what it is.”

Referencing Section 8 and Section 42 payments, he said: “It’s an interesting situation if you really think about it, that we can’t deny lawful payment, or whatever you want to call it. I mean the money would be coming from the federal government. The federal government is printing money like it’s going out of style, and we can’t object to that by saying in our community, no, we don’t want to be a part of that.” 

Addressing concerns about TIF, he said, the CDA passed the incentive package on a Thursday and on the following Tuesday, he said, “I specifically asked city administration what the amount of the TIF was, and it was not very directly, it was not told to me. And citizens were not allowed to  speak on it when it was voted on that night. If I’m wrong please correct me. And I think it’s unfortunate; it’s a lot of money.” 

He said he would support the “toning down, the halving” of the units.

He said his kids play in the neighborhood. He called it “a congested area.”

Stoneman thanked residents for coming forward with their concerns.

“The PARC has a limited amount that we can — we have to look at this — the conditional use and the architectural review. And I’m actually really relieved that we are taking off sections 8 and 42. We shouldn’t be discriminating against people because of social status or for any reason,” she said. 

An earlier story outlining the findings of the two attorneys in advance of Monday’s meeting is here: https://whitewaterwise.com/modification-approved-by-plan-commission-for-development-of-apartment-complex-found-in-violation-of-fair-housing-law/.

An earlier story about the PARC’s decision to approve the conditional use permit for the development on Jakes Way with the modification restricting use of Section 8 vouchers and Section 42 tax credits, is here: https://whitewaterwise.com/plan-commission-approves-moraine-view-conditional-use-permit-modification-under-review/.