Status of Stone House Old Sauk Project, Review of Development Approval Process

What is this about?

Last week, the Parkwood Hills Neighborhood Council reached out to ask me for information about the current status of the Stone House Development proposed apartment project for 6610-6706 Old Sauk Road. Parkwood Hills lies on the south side of Old Sauk Road across from the proposed project. To answer the four posed questions, I began by a review of the overall process (some call it a “gauntlet”), that development proposals must pass through.

I’m afraid that my response is a real 8-page snoozer. However, there might be other District 19 residents interested in the status of this development and, perhaps, some broader interest in Madison’s project approval process.

The Process

1. Pre-application phase – not all steps taken or in this order, and may take place multiple times as a design evolves. At any point, developer may elect to abandon or delay project.

   1. Developer may meet informally with Planning staff to learn development potential of a particular property such as current zoning, possible re-zoning, possible density, building height and any known problems.
   2. Developer requests appearance before a Design Assistance Team (DAT), a half-hour videoconference in which developer briefly introduces preliminary design and representatives of the many departments that review projects highlight requirements and concerns.
   3. Developer introduces project to relevant alder.
   4. If developer and alder agree, alder makes arrangement through Common Council Office to host a neighborhood meeting at which developer presents preliminary plans and invited neighborhood residents provide reactions and suggestions. These are public, recorded meetings, usually virtual, and therefore anyone may attend, not just invitees.
   5. If existing buildings are to be demolished, developer may meet informally with the Landmark Commission to learn requirements.
   6. If the property lies in an Urban Design District, developer may meet informally with the Urban Design Commission to learn more about expectations.

2. Application and Application Review Phase – Developer may withdraw or be rejected at any point or re-design and re-submit

   1. If developer decides to proceed, it formally submits applications, the number and type depending on the location and nature of the proposal. In the case of the Stone House Old Sauk project, the developer applied for re-zoning of the property, a demolition permit for the existing buildings, a conditional use permit, and a certified survey map approval. The documentation accompanying the applications are still not final, ready-to-build plans. The development of stormwater management plans at this stage are extraordinarily rare. Traffic analyses are somewhat more common.
   2. For demolition permits, the Landmark Commission meets to review the project and advise the Plan Commission whether the buildings have historical value. If any buildings to be demolished are in a registered historical district or are themselves registered, it is a more elaborate process. The Landmark Commission advised the Plan Commission that it did not find the existing Old Sauk buildings to have historical value.
   3. Since the Old Sauk project does not lie within an Urban Design District, the Urban Design Commission was not involved.
   4. Multiple agencies and departments review the submitted plans and provide comments and suggested conditions to the Plan Commission.
   5. Any interested persons may comment on the applications. Such public comments are collected by Planning Staff and entered into the public records and made accessible to Plan Commissioners and the general public.
   6. The Planning Staff prepares a staff report, which includes comments on specific findings required by ordinance for each application and a list of recommended conditions. If appropriate, it also includes more detailed analyses and comments provided by the reviewing departments. Highly unusual in the case of the Old Sauk project, Stone House submitted a preliminary stormwater management proposal and further amended it based on comments from experts engaged by a neighborhood group. Consequently, a detailed analysis by Madison’s stormwater engineering staff of the stormwater management plan and of the comments submitted by the experts retained by the neighborhood group were included for review by the Plan Commission.

3. Approval phase – The Plan Commission approves or denies demolition and conditional use permits. It makes recommendations to the Common Council on re-zoning and certified survey map applications.

   1. The Plan Commission took up the Old Sauk project matters at its June 10, 2024, meeting. During the public comment period, the speakers in opposition significantly outnumbered supporters. Three other major developments on the agenda had registered speakers. With regard to all of the applications, ordinances provide specific findings that the Plan Commission should consider in determining its decision.  For all four applications, commissioners had questions of registrants and of staff. The Plan Commission approved all four applications by a unanimous vote. The Plan Commission can add, delete, or modify conditions proposed in the staff letter. The Commission accepted the conditions as proposed.
   2. Let me highlight a few of the 63 conditions approved by the Plan Commission for the Old Sauk project:
      1. Submit a final stormwater management plan
      2. Submit a stormwater maintenance plan
      3. Obtain a Wisconsin Department of Natural Resources stormwater management permit (state requirements are much more lenient than Madison’s)
      4. Construct sidewalk (at least five feet wide), terrace, curb and gutter along Old Sauk Road and convey to the City.
      5. Construct a traffic island, marked continental crosswalk, pedestrian ramps, and rectangular rapid flashing beacons to facilitate the crossing of Old Sauk Road and convey to the City.
      6. Provide a street tree inventory and plan.
   3. The Common Council took up the Old Sauk project re-zoning and certified survey map applications on June 18. In the public hearing there were many registrants speaking in support and opposition of the project. Three other major projects also attracted numerous registered speakers causing the meeting to last until about 2 am. The Old Sauk re-zoning and certified map were approved by a roll-call vote of 15 to 4. One alder was absent.

4. Appeal phase – few decisions to approve or deny by the Plan Commission or Common Council are appealed, but there are prescribed paths.

   1. Approvals or denials by the Plan Commission of demolition and conditional use permits may be appealed to the Common Council by entitled parties. In considering appeals, the Common Council sits as a judicial body, with rules different than for normal business. Such an authorized appeal of the Stone House Old Sauk project has been made to overturn the Plan Commission’s approval of the conditional use permit. The tentative schedule is for the appeal to be “noticed” on July 2, with the hearing on July 16. Per applicable ordinance, overturning a Plan Commission decision requires fourteen votes in favor of overturning.
   2. Decisions of the Common Council can be appealed to the judicial system. Historically, this has been done rarely, with success extremely rare.

5. Final building approval phase – required for the issuance of demolition and building permits for various phases.

   1. The developer generates final architectural, civil engineering, and mechanical engineering plans and attendant calculations, studies, and analyses as well as specialized plans such as stormwater management, stormwater maintenance, street tree, traffic demand management, waste management, and others.
   2. A range of City departments review the plans for conformance to ordinances and the approved conditional uses. It is not unusual for there to be multiple re-designs and resubmissions until the City agrees that the plans conform to the ordinances and approved conditions.
   3. Demolition and building permits for various phases are issued, often in phases as the relevant conditions are satisfied.
   4. During actual demolition and construction, staff of the Building Inspections Department make physical visits to confirm that the work conforms to the approved requirements.
   5. A final certificate of occupancy and conveyance of infrastructure to the City does not happen until all requirements are met. Sometimes conditions are open to interpretation, and coming to a settlement of such disagreements may add time to this phase.

6. After occupancy phase

   1. The process does not end with an occupancy approval. Some conditions, the stormwater maintenance plan for example, may be enforceable in perpetuity. The Building Inspections Department may inspect for such requirements periodically. More commonly, Building Inspections reacts to complaints by neighbors, residents, or others. It has the power to require restored conformance and assess penalties.

Parkwood Hills Community Association Questions

1. Street Safety

Q. What added safety measures will be added around the vicinity, such as (i) cross-walks, (ii) no parking signs to provide visibility for cars and pedestrians turning from perpendicular streets onto Old Sauk, (iii) speed bumps, etc. and where can these details be found or requested?

A. As noted in the process above, if the project is not rejected in later phases, Stone House will be required to construct a cross walk to Madison standards as determined by Traffic Engineering. Detailed plans are required as part of the final permit approval process. In its initial review, Traffic did not highlight other safety measures required from the developer or from the City. This could change during final review before permit issuance, and I intend to discuss such measures with staff. There is also a process for residents and neighborhood associations to request improved street, biking, and pedestrian safety measures. There is a process for ranking these by several criteria, and at any time there are often over 400 outstanding projects. Nevertheless, as alder, I can help facilitate the request. Area residents have noted their concern about problems that might be caused by residents of the Old Sauk project having more vehicles than assigned parking spaces and deciding to park on neighborhood streets. On my task list is investigating whether Madison rules for parking permits may apply.

2. Appeal and Stormwater Concerns.

Q. What does the news about an appeal mean and what should a layman know about the appeal’s specific mention of stormwater risks?

A. I described the appeal part of the process earlier. An appeal needs to include a claim that the Plan Commission erred in one or more of the findings required by ordinance. In this case, the appellant asserts that the Plan Commission did not properly assess the risk to neighbors posed by the preliminary stormwater management plan. Neighbors engaged and funded an independent study of the developer’s preliminary plan by a respected stormwater engineer and also obtained input from a highly credentialed soils engineer.

I mentioned during the process description above that it was highly unusual for a developer to submit a stormwater management plan that was nearly 90% complete (I’ll explain what that means later). The engineer engaged by Stone House is also widely respected, as is the City’s stormwater engineering staff. All of these engineers know and respect each other and work well together even if they disagree on some details.

Why did Stone House take the unprecedented step of producing a preliminary stormwater plan in advance of issuance of a conditional use permit? There are probably four reasons: (i) residents raised the concern at a neighborhood meeting in October 2023, (ii) I raised my own concern to the developer after walking the property on February 10, (iii) recognizing that the investment in a stormwater management system for a difficult property might be significant, the developer needed to determine if the cost might render the project unprofitable, and (iv) recognizing that long-term maintenance of a major stormwater management system would be significant, the developer needed to know how that would affect long term profitability. Whereas many developers sell a project as soon as possible after completion, Stone House Development’s business model calls for it holding and managing a property for perhaps thirty years, so long term maintenance costs are important.

It is known that the Old Sauk property and surrounding properties, especially two adjacent properties, are particularly flood prone, as identified by the City after the 2018 flood event. After that event, Madison dramatically strengthened its stormwater ordinance. The basic objective is that developments do not increase the risk of damage to area properties compared to the risk before development. There is far more to the requirement, but that is the basic thrust. Developers must use recognized modeling software to estimate the flow of stormwater under a range of rain events, both as the property currently exists and how it would behave after development.

There are a variety of stormwater management methods for meeting the requirements of the ordinance which govern the quantity of stormwater which can be released to the storm sewer system and watershed (in this case ending eventually in Lake Mendota) and the pace of release. Two basic categories are (1) catchment basins, including underground reservoirs that hold rainwater and release it gradually, and (2) methods for speeding infiltration into the soil and eventually into groundwater aquifers. Experts at the University of Wisconsin-Madison are strongly encouraging maximizing infiltration compared to eventual diversion of stormwater to Lake Mendota. The preliminary Stone House plan heavily emphasizes infiltration by manipulating the soil beneath underground stormwater tanks. Stormwater overflowing the Old Sauk Road curb would go into an open basin on the west side of the property.

For better or worse, District 19 has ended up with an alder with over 50 years of experience in construction and development. Among other things, that means that when I walked the Old Sauk property on February 10 with the owner and neighbors, it was obvious to me that the parcel would pose a stormwater challenge for any form of development. I remember that some neighbors asked me, if I thought the project might be directed. I replied that I didn’t think so, regardless of my vote. In fact, I expected that it would pass the Plan Commission unanimously and that it would garner no more than five opposition votes in the Common Council. I concluded that I could best serve my constituents by leveraging my experience to advocate for the best possible plan, especially regarding stormwater management. That is why I reached out to Stone House to emphasize the importance of a well-crafted stormwater management and maintenance plan.

Based on the reports of their stormwater and soils engineers, I believe that the appellants will argue that infiltration through at least one of the underground basins could reach a couple of the homes that are at a lower level than the Stone House property and that developers can never be trusted to properly maintain infiltration systems, that water damage to at least some nearby homes is inevitable. Addressing such risks is difficult because Madison’s beefed-up stormwater ordinance doesn’t attempt to cover infiltration risks, because it is very difficult to define and model.

Not wishing to rely exclusively on the proposal of the Stone House stormwater engineer, the stormwater engineer and soils expert engaged by the opponents or the Madison stormwater engineering staff, I took my own deep dive into the available literature with the aid of large language generative AI. I was particularly interested in the forensic analysis of infiltration system failures. Validating to some extent the concerns of the independent stormwater engineer and soils expert, failures are most commonly attributable to inadequate maintenance and occasionally to improper initial design. Failures are not inevitable.

Despite a fair amount of vitriol directed at me personally by some opponents, I remain dedicated to do what I can to assure that the Stone House project, if approved, has a stormwater management and maintenance system that is as robust as possible. As noted earlier, the stormwater management plan submitted by Stone House is preliminary and a management plan has not yet been submitted. On June 27 I met with Greg Fries of Madison’s stormwater management engineering team to brainstorm about things we hope to see in final Stone House stormwater and maintenance plans. We have reached out to the developer and their engineer with some ideas and will explore them and other ideas that may bubble up in further conversation.

3. Anything else?

Q.  Is there anything of substance that you feel it would be worth sharing with the neighborhood as it relates to rezoning and the Old Sauk Apartments. (timing, length of construction, etc)?

A. in the earlier discussion of the approval process some of the timeline answers were included. If the appeal to the Common Council fails on July 16, Planning will issue a formal notice on the requirements of the conditional use permit. It will probably take at least six to eight weeks for the developer to prepare and furnish all of the required documentation and for the reviewing staffs to respond. There can be multiple rounds of design evolution, so it is hard to predict how much time will pass before construction of the apartment building could begin. A demolition permit for the existing buildings could be issued fairly quickly.

My deep dive into the stormwater management issue leads me to make a point about possible alternative forms of development on the property. Neighborhood opponents of the Stone House proposal have stated their preference for ownership housing on a more modest scale, the so-called “missing middle”. As I mentioned several months ago in a blog on the “missing middle,” currently prevailing financial, economic, and legal obstacles to that form of development are formidable. I speculated that the only route to that kind of development would be if the neighbors pooled their resources and offered a competitive bid to the owners and undertake their own development, albeit at a tremendous financial loss. It was always a forlorn hope that a Common Council rejection of the Stone House proposal would force the property owners to accept a much lower price.

As I noted earlier, this particular property is a stormwater challenge for any form of development. Despite the extreme unlikelihood of a missing middle development I decided to model a development with two-story duplex and four-plex condominiums with a density 60% less than the Stone House proposal, and found that the amount of impervious surface might be even greater than that for the Stone House building. If true, it would be as or more difficult to manage stormwater for such a development, more difficult to finance and dramatically more difficult to properly manage long term. Stormwater management systems that must be maintained by small condominium associations or individual owners are notorious for lapsed maintenance. As one alder mentioned when the re-zoning was approved on June 18, the neighborhood might be much better served by a well-regarded developer that has a long history in Madison, holds and manages its properties for the long term rather than dumping them off to outside investors, and has a vested interest in designing and maintaining their properties for the long term.

4. Best approaches to neighborhood engagement

Q. Are you aware of Madison having any Neighborhood Planning Units? Our neighbor just relocated from Atlanta and spoke highly of the NPUs they had; NPUs allowing for action to take place from ground up vs top down. Just curious what you know of these.

A. In 1974 Mayor Maynard Jackson proposed and the Atlanta City Council approved the establishment of Neighborhood Planning Units (NPU’s) to propose improvements of infrastructure (ground up) and to provide comments on proposals and concepts suggested by Atlanta’s Planning Department (top down). It’s appropriate to understand the context of the establishment of NPU’s. Atlanta was just emerging from the Jim Crow era, the white population was fleeing to new suburbs and adjoining counties, and a continuous flow of new arrivals were choosing to locate in those same new suburbs and adjoining counties. Much of the Atlanta population had long been excluded from active decision making. The NPU concept was a formal conduit to connect the government and citizens. They are advisory bodies and do not have veto power over legislation. Nevertheless, over fifty years, they have become institutionalized and do exert a powerful influence on neighborhood and area plans. Atlanta has adopted a fifteen-year cycle of developing area plans, and the NPU’s are the primary venue for soliciting comments and suggestions.

Today Atlanta, with a population of about 499,000 in a metropolitan area of 6.9 million, has 25 NPU’s. That means that the population of each NPU is about 140% of an average Madison alder district. Those residents of NPU’s who actively participate elect a board, chair and other officers. Atlanta has 245 distinct neighborhoods, many of which have formal leadership, and those chairs are part of the NPU leadership. The 25 NPU chairs sit as a formal zoning advisory committee.

While Atlanta has not experienced the explosive growth of the surrounding municipalities, it has been growing at a compound growth rate of 1%. Like most US cities experiencing growth, housing development has not kept pace, and the City is now dealing with an acute shortage, leading to pressures for zoning reforms to accommodate greater density and faster approvals of new developments. Atlanta has not updated its zoning code for forty years. The effort to adopt zoning reform, now referred to as ATL Zoning 2.0, began in earnest in 2021. A new zoning ordinance is expected to be approved somewhere between mid-2024 and mid-2025.

As the zoning reform effort has proceeded, the NPU’s have been a loud voice opposing greater density in single-family zoned neighborhoods. That has led to a strong countermovement claiming that NPU leadership has become entrenched, elitist, and un-representative of the broader population and its needs. There are calls to reform the NPU’s. In 2022 Atlanta launched “NPU University” with the goal of training and mentoring the unheard voices in how to participate in NPU’s.

Perhaps this all sounds eerily familiar to Madisonians. Historically, our City relied on homeowner associations and neighborhood councils to provide many of the advisory functions of an Atlanta NPU. That has been progressively less sufficient for a number of reasons. Among these are (i) large swaths of the city are not covered by an association or council, (ii) some associations elect not to adopt a position on city policies, (iii) some have become inactive or semi-active, perhaps reflecting a cultural trend toward lower citizen volunteerism in such activities, and (iv) those actively involved in some do not appear representative of the population covered by the association or council. Madison has been experimenting with methods to increase participation in important discussions on land use, zoning, transportation, parks, and other matters. Anyone who attended one of the neighborhood meetings on the West Area Plan could not avoid noting that the audience did not remotely reflect the diversity of the area.

I anticipate that Madison’s approach to engaging its residents will continue to evolve. Other alders and I are experimenting with approaches to solicit the advice of our broader citizenry.