Zoning Basics on Prospect Avenue

From Presentation by Vanessa Koster 8/27/08

Notes Prepared by Eileen Collins

 

Introduction

 

This document contains

Part I Summary Notes

Part II Detailed Notes

 

Vanessa’s Power Point Slides are at http://www.prospectaveassn.org/prospectzoning-8-27-08.ppt

 

The full Milwaukee zoning code is at http://www.mkedcd.org/czo/index.asp

 

I.  Summary Notes

 

Our PAA neighborhood is mostly zoned “RM7” which is high-density multi-family residential.

 

Required Setbacks from the Property Line

·        Front:  Average of the setback of the two adjacent buildings, but not over 15 feet.

·        Rear: Minimum 10 feet (For buildings on the bicycle path, probably 10 feet counted from the bottom of the bluff)

·        North side: at least 1.5 feet for the first eight floors. 

·        South side: at least 3.5 feet for the first eight floors. 

·        Side minimum increases by 4 feet on each side for each floor above 8

 

Maximum number of units

·        Lot size in square feet divided by 150

 

Floor area ratio (FAR)

·        Sum of area on all floors in square feet divided by lot size in square feet 

·        Cannot exceed 4.

·        Parking levels not included in floor count

 

Parking spaces: at least 3 spaces required for every 2 units

 

A property owner has the right to build whatever the zoning allows without public input or review.

 

Any property owner can petiton for a zoning change. 

  • The change would require (after public notification and comment) approval by the City Planning Commission, the Zoning Neighborhoods and Development Committee, and the Common Council. 
  • If neighbors owning 20% or more of adjacent land object and file a petition according to city rules, ¾  of the Common Council is required for approval.

 

A change to “Detailed Plan Development” DPD (as has been requested for 1646 and 1550 N Prospect) is a change in zoning.

  • In evaluating a request for DPD, the city asks what would be gained by approving it, as compared to keeping the existing zoning.
  • If there is an approved neighborhood plan, it is consulted in the evaluation of a request for DPD.
  • If there is no approved neighborhood plan, the city uses its "Principles of Urban Design"  http://www.mkedcd.org/planning/plgldes.html  

 

Not in the Zoning Code

  • The zoning code does not call for preservation of income diversity.
  • It does not require a market study of supply and demand before a zoning change can be approved.
  • Noise and disruption during construction and any blockage of public streets are covered in other parts of the city code.

 

Northeast Area Plan

 

  • The final draft is expected late fall or the end of 2008.  It will be posted to the Web, and public meetings will be held after that.

 

  • The final draft might recommend creation of an “overlay zone” to explore concerns about future development on Prospect Ave and historic preservation.  If the recommendation is in the final plan approved by the Common Council, it will still be just a recommendation.  Going on to create an overlay zone would require an approval process like that for rezoning.

 

  • The final draft of the Northeast plan will not recommend a numerical guideline for space between condo towers.  It may not say anything at all about condo spacing.

 

II. Detailed Notes

 

Our PAA neighborhood is mostly zoned “RM7” which is high-density multi-family residential.  “Neighborhood-serving” commercial establishments commonly found in urban neighborhoods (e.g., restaurants, convenience stores).  The high density designation was applied in a city rezoning effort some years back.

 

Minimum lot size for new construction is 2400 square feet

 

Required Setbacks (Slides 5 to 9)

 

·        A setback is the distance from the building to the property line.

 

·        Front Setback

o       Vanessa said the front setback must be the average of the setback of the two adjacent buildings, but no more than 15 feet.

o       Slide 6 says the front setback requirement is no closer than the average setback less 20%; no further back than 15 feet or the average setback plus 20%.

 

·        The “street adjacent property line” is generally set 1 foot from the sidewalk.

 

·        The rear setback must be at least 10 feet from the rear property line (unless the rear abuts a street).  Properties on the Prospect bluff abut a park.  So, the minimum set-back is 10 feet from the park.

 

·        A PAA member who has been studying the bike path believes that the property line is generally 40 feet from the center of the bike path.  You would need to consult the platt for a specific property to know for sure. 

 

·        The side setback on a north or west side of a property must be at least 1.5 feet for the first eight floors. 

 

·        The side setback on the south or east side of a property must be at least 3.5 feet for the first eight floors. 

 

·        For each additional floor above eight, the minimum setback increases by 4 feet on each side.

 

Maximum number of units is lot size in square feet divided by 150.

 

Floor area ratio (FAR) (Slides 10 -14)

 

·        The FAR is the sum of the square feet on all floors divided by the square feet of the lot. 

 

·        The FAR cannot exceed 4.

 

·        But parking levels, even if they are above ground and cover the entire area inside the setbacks, are not counted in the FAR.  They are “free” so to speak.

 

There is no specific height restriction, but the FAR and setback requirements create an indirect constraint on height. 

 

A minimum of three parking spaces is required for every two units.  (Often developers decide to provide more spaces; for example, one parking space for each bedroom.)

 

Requirements for Material, Glazing, Etc

 

  • None

 

  • But such requirements can be written if a property is rezoned to “Detailed Plan Development”

 

By Right

 

  • A property owner has the right to build whatever the zoning allows.

 

Building Permit

 

  • If a proposed development will comply entirely with the zoning code, the city can issue a building permit without requesting public comment.

 

Any property owner can petition for a zoning variance

 

  • Variance requests are handled by the Board of Zoning Appeals, a quasi judicial board

 

  • A factor in the approval decision is whether the variance is needed to allay hardship of the owner (for which there are specific criteria)

 

  • A public hearing is required if the variance is for a change in use (as opposed to a change in dimensional requirements).

 

Any property owner can petition for a zoning change

 

  • When a zoning change is requested, the review process includes public notification and comment.  Approval is needed from the City Planning Commission, the Zoning Neighborhoods and Development Committee, and the Common Council. 

 

  • If a sufficient number of adjacent owners object to a request for rezoning, then three fourths of the Common Council is required for approval;

 

    • that is, the owners of 20% or more of the area of land immediately adjacent, extending 100 feet from the property for which rezoning has been requested. 

 

  • The owners must sign a duly executed petition and file it according to the city’s time requirements.

 

A request for “Detailed Plan Development” DPD or “General Plan Development” GPD is a request for a zoning change and is handled as such.

 

  • DPD is for a specific building plan, including all specifications and details.  Once the city approves the DPD, the developer can obtain a building permit.

 

  • GPD is for a master plan with several phases.  Approval of the GPD alone is not sufficient for obtaining a building permit.  The developer must request DPD for the first phase of the overall project and then a building permit for that phase.  Each subsequent phase will then require its own DPD and building permit.

 

  • The DPD and GPD are beneficial because
    • The approval process allows public input
    • The approved plan lets developer and the city know what will be built and applies no matter how many years passed since first approved (until and unless there is a subsequent modification or zoning change)

 

  • For a change to the DPD after it has been approved by the common council, the developer must request an amendment which goes through the same approval process as an initial DPD request.  For a minor modification (there is no change in the overall general character of what was approved), the same approval process is used, except it can be done without public hearings.

 

Approval Process

 

  • The applicant must file the request for zoning change 9 days ahead of the scheduled Common Council meeting

 

  • DCD staff draft a proposed ordinance for the zoning change in preparation for the Common Council meeting.

 

  • The Common Council does not discuss the proposed ordinance, but they assign a file number and refer it to the City Planning Commission. 

 

  • 14 days in advance of a regularly scheduled CPC meeting, the developer must submit the required application materials.

 

  • The DCD staff review the materials.  If application is complete, the staff make a report and recommendations and send out hearing notices.

 

  • The CPC holds a hearing, hears public testimony, requests changes in response to pub comments, and makes a recommendation to the Zoning Neighborhoods and Development Committee of the Common Council.

 

  • The ZND are the policy makers [along with the other members of the common council, I assume].

 

  • The ZND hear the same testimony as CPC heard.  They make recommendations to the full Common Council.  The full Council makes the final determination. 

 

Public Notice

 

  • The city must notify all owners within 200 feet of the property 10 days in advance of CPC hearing

 

  • The public’s testimony and letters go into the record

 

  • A “class 2 hearing” [what is this? the ZND hearing?] is required for a zoning change.  A notice is inserted into the Daily Reporter 2 days in advance.  Another public hearing notice is sent to the same people within the 200 feet.  Sometimes notify others.  Notify representatives of the neighborhood association.

 

 

 

Protest Process

 

  • If a petition of protest is submitted to the City Clerk’s Office, they route it to DCD and the City Attorney’s Office to determine if the signatures and petition conform to the city requirements and they report to the Common Council.

 

  • If it is a legal protest petition, ¾ of the Common Council are required for approval of the rezoning.

 

  • Property owners cannot start their protest petition until the application for rezoning has been submitted—when a file has been created

 

  • Property owners themselves should sign.  It might be possible for a condo board to sign for the owners if thier condo declaration statement provides for that.

 

Review Considerations

 

  • The city asks what would be gained by approving the DPD or GPD, as compared to keeping the existing zoning?

 

  • The city consults the neighborhood plan for the area, if there is a plan that has been approved by the Common Council

 

  

  • In response to a question, Vanessa said that the city can use their flexibility under the code to consider alignment and compatibility with other buildings around a proposed development.

 

Not in the Zoning Code

 

  • The zoning code itself does not require diversity or income diversity.  The city says the market decides what income segment to build for.

 

  • The zoning code does not require the developer to provide a study of supply and demand.

 

  • Noise and disruption associated with construction, repairs, and project delays are not zoning issues.  They are “enforcement” issues.

 

    • If you have a complaint, contact the Dept of Neighborhood Services.  They will identify what part of the city code is relevant, make a site visit, determine whether your complaint is valid, and act accordingly.

 

  • Blocking the right of way on a city street

 

    • This is regulated by the Department of Public Works

 

    • Developers can block the right of way, but they pay for it.   Vanessa says they pay a lot.  The payment is higher the greater and longer the disruption.

 

  • Moving Noise-Producing Equipment after Project Completion

 

    • The Development Center can be asked to review any changes in placement of noise-producing equipment to determine if there is a violation of any ordinance.

 

Northeast Area Plan

 

  • The draft is with the city’s contractor.  DCD cannot make any time commitments.  The final draft is expected late fall or the end of 2008.  It will be posted to the Web, and public meetings will be held after that.

 

  • The plan could conceivably include a recommendation for rezoning if current zoning is not consistent with the current character of the neighborhood.  Or, a recommended overlay zone might imply that rezoning is needed.  But a recommendation is not a requirement.

 

  • The plan could recommend an overlay zone to explore concerns about future development on Prospect Ave and preservation of historic structures. 

 

  • If the plan were approved with the recommendation for an overlay zone, the city would consider, but not necessarily adopt, the recommendation.

 

  • Creation of an overlay zone would have to go through a public vetting process.  It would be like the process for a zoning change.  If the overlay district were approved by the Common Council, all future development would have to comply with it. 

 

  • After an overlay district has been approved, it can be amended (e.g., for things that don’t work or where additional guidelines are needed).  Back to the Common Council and request a zoning change; approval would require the same process as for any other zoning change.

 

  • The city is still considering whether or not a recommendation for a Prospect Avenue overlay should be included in the Northeast Area plan.

 

  • The plan will not contain a recommendation for requiring 200 feet between condo towers.  This was included in an illustration by one of the consultants, but it is out now.  [I believe the 200 feet has been turned into a red herring.  The contractor’s illustration showed high buildings alternating with low buildings, such that the 200 feet between towers was occupied by the lower buildings.  But Aldermen misinterpreted.  At least one large land holder has objected.  So the 200 feet is out.  Unfortunately, the original suggestion is often used as a red herring to show that there can be no guidelines for separating condo towers.]

 

It is entirely possible there will be no recommendation for space guidelines between condo towers.

 

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