What is a “Remand”? – The Old Sauk Project Returns to the Council

Court Decision

On June 3, Hon. Judge Rhonda Lanford of the Dane County Circuit Court Branch 16, remanded the re-zoning of the property at 6610-6706 Old Sauk Road (in District 19) to the Madison Common Council with instructions to re-consider the re-zoning approved on June 18, 2024, with specific reference to the state and local requirements for consistency with the approved comprehensive plan. A remand is considerably different than an overturning. Judge Lanford concluded that the Council records of June 18 did not adequately indicate whether the Council had properly evaluated the consistency of the particular re-zoning decision with the comprehensive plan, which it must now do.

The decision did not apply to the demolition permit approved by the Plan Commission on June 10, 2024, the conditional use permit approved by the Plan Commission on June 10 and unsuccessfully appealed to the Common Council on July 16, or the certified survey map approved by the Common Council on June 18. The conditional use permit is the subject of a separate suit filed by the same plaintiffs in Dane County Circuit Court Branch 1 and is the suit that addresses the stormwater concerns of the plaintiffs. As of this date there has been no ruling in this second suit.

The Project

The project involves the redevelopment of the Pierstorff property which contained an ancient barn, two single-family homes and a duplex on 3.77 acres. Stone House Development of Madison optioned the property and proposed building a three-story apartment building with 138 market-rate rental units. Stone House recently exercised its option, purchased the property, and has nearly finished demolishing the existing buildings.

Since the demolition permit granted by the Plan Commission was not contingent on the re-zoning or conditional use approvals, the demolition now underway was permissible and a “raze permit” was granted. This allows the developer to tear down principal structures and their foundations and return the ground to grade.

Applicable Law and Madison Comprehensive Plan

Adopting and amending zoning ordinances is governed by Wisconsin Statute 66.1001(3) as clarified by 2010 Act 372 and Madison Ordinance 28.182(6). Both require that zoning must be consistent with the adopted comprehensive plan.

In this case, the applicable comprehensive plan is the 2023 Comprehensive Plan which identifies the future land use of the Pierstorff property as “LMR”.  The 2023 plan was amended by the West Area Plan approved by the Common Council in 2024, but which did not change the LMR designation for this property. LMR provides for light to medium residential uses, generally thought of as the “missing middle”, everything from single-family homes to three-unit buildings, row houses, and small multi-family buildings, with densities of 7 to 30 units per acre and buildings up to three-stories tall.

However, the “Growth Framework” provisions of the 2023 Comprehensive Plan include provisions that allow large and courtyard multi-family buildings in LMR areas in “select conditions” at up to 70 dwelling units per acre and up to four stories tall. The Common Council further clarified conditions for these more intensive Medium Residential (MR) uses in December 2023. There are three primary factors to be considered:

1. Relationships between proposed buildings and their surroundings and lot and block characteristics.
2. Natural features
3. Access to urban services, transit, arterial streets, parks, and amenities.

The developer’s request to re-zone the Pierstorff property from a combination of SR-C1 and SR-C3 zones to TR-U2 requires that the aforementioned special conditions and factors be considered in determining whether the re-zoning is consistent with the LMR designation in the comprehensive plan.

In fact, the conditions and factors were extensively reviewed and discussed as part of the Plan Commission approval on June 10, 2024. While it might be argued that Council members relied upon that extensive documentation in their June 18 approval, Judge Lanford, in remanding the re-zoning to the Common Council, is requiring a more explicit consideration of those conditions and factors.

What Happens Next?

The re-consideration of the re-zoning will be added to an upcoming Common Council agenda, likely as soon as Tuesday, June 17. Before then, the City Attorney’s staff and Planning staff will provide educational materials to Council members regarding the law, the comprehensive plan, and Judge Lanford’s specific instructions. While there have been media comments that a Council majority will be prejudiced in favor of the re-zoning, my own observation of my colleagues is that they take such semi-judicial proceedings seriously and will do their best to respond to the facts. Seven new alders were elected on April 1, and this will be their first acquaintance with the Old Sauk project.

A unique aspect of the statutory provisions for the remand process, specifically noted in Judge Lanford’s opinion, is that the Council may not consider new information. This means that the Council may only consider the information available to the Council as of the point in time that the motion to approve was made at the June 18, 2024, Council meeting. Subsequent communications, including the barrage of emails that alders are now receiving on this matter cannot be considered, and no public comment at the meeting will be allowed.

The matter of the adequacy of the Stone House stormwater plan and the risks it may pose for the plaintiffs is a separate matter under the conditional use suit. It is my understanding that Stone House submitted a third version of a stormwater plan which satisfies the ordinance as it existed in mid-2024 but also the later amendment which provides more protections from stormwater infiltration. I also understand that the stormwater plan has been approved by the City.