PD Rezoning Meeting Take-Aways & More

The Rezoning Initiative

If you live in a single-family home or duplex in Wexford Village or on Rough Lee Court in District 19, you received a postcard inviting you to attend public information meetings on June 22 and 25. In these well-attended meetings, zoning and building inspection staff explained Madison's initiative to convert planned developments (“PD's") to one of Madison's conventional zones that were established when Madison's zoning ordinance was updated in 2013. The zoning ordinance has been amended several times since 2013, especially in a series of changes as part of Madison's “Housing Forward" initiative.

Prior to the 2013 zoning ordinance update, it was difficult for developers and city planners to design the kinds of neighborhoods they thought would be attractive to homebuyers. Their solution was to create a PD, establishing details such as lot sizes, minimum home sizes, setbacks, street layouts, and all other aspects of the built environment that require a building permit. These aspects of the PD became a special zone unique to the neighborhood. In many cases declarations of covenants were also filed with the County Recorder that contained rules beyond those involved in a building permit and zoning regulations. For example, covenants might regulate maximum fence height, details of landscaping, and storage of vehicles, among others. PD's were common in Madison between the 1970's and early 2000's. Since the zoning update, they are rarely used because the updated code provides the clarity and flexibility developers need and homebuyers want.

There are two primary reasons for the rezoning initiative.

• PD's are an efficiency burden on the building inspection permitting staff, which has to do considerably more research on the PD details, as well as an obstacle to homeowners wishing to do something as simple as adding or replacing a deck or adding a small addition. Madison is laser-focused on finding efficiencies that reduce the need to add employees as the city grows. Similarly, homeowners in PD's may wish to have the same rights as homeowners in conventional zones.
• Except for arduous pathways to amend them, PD's are locked in the past. Homeowners in PD's cannot take advantage of the various amendments to Madison's conventional single-family and duplex zones such as those permitting auxiliary dwelling units (“ADU's" or “granny flats") or the conversion of single-family homes to duplexes. Across the US, these kinds of developments are referred to as “gentle density". Covenants will survive the rezoning and may still prevent homeowners taking advantage of those rights. Of course, a neighborhood may feel that they and their neighbors benefit from those restrictions and they have every right to preserve the restrictions. New subdivisions and multifamily developments are the playground for large developers. The kind of low-impact development possible under this rezoning is an opportunity for local small developers and even homeowners themselves.

The current initiative is limited to single-family and duplex PD's. Madison may look at multi-family and commercial PD's in the future, but that will be very complicated. In the current initiative all 4,000 residences in PD's (in all but four of our 20 alder districts) will be converted to one of the conventional single-family and duplex zones.

Finding more about the Rezoning Initiative

Madison has established a rezoning webpage that has a lot of additional information. The staff presentation at the June 22 and 25 meetings is a helpful overview. The page also has links to the meeting recordings which include an extensive Q&A between staff and attendees.

I've extracted some D19 information on the relevant conventional zones for easy reference.

• All single-family and duplex lots in Wexford Village would be rezoned to SR-C3.
• All single-family lots on Rough Lee Court would be rezoned to TR-C2.

Building Inspection staff encourages residents to contact them between now and September to discuss questions they may have about their specific home or lot.

• Building Inspection permit services center website for single-family and duplex homes
• Email for services center: zoning@cityofmadison.com
• Phone number for service center (select zoning): 608.266.4551
• Zoning code ordinance (residential zoning districts begin at 28.031)

The Rezoning Process

Here is the path to possible approval of the rezoning. Resident and homeowner association comments and questions, further staff research, and plan commissioner and alder input could result in some tweaks to the initiative.

• Now until September – Staff available for individual questions from property owners.
• July – Legal postcards mailed to property owners and occupants within 200 feet of the PD's.
• July/August – Plan Commission discusses proposal and makes recommendation to Common Council on the ordinance amendments.
• September – Common Council decides whether to adopt the ordinance amendments

District 19 Q&A

You can access the recorded Q&A with staff using the recording links on the rezoning web page. The questions are highly repetitive, which I suspect means that the concept is not easy to grasp, especially the difference between zoning ordinances and covenants. I'm also aware of some questions raised in constituent emails or by the Wexford Village Homes Association that were not addressed during the meeting. I'll try to cover those that I know are of particular interest to District 19 residents, although most apply to the majority of the PD's in Madison.

Q. What is the difference between a zoning ordinance and a covenant?

A. It's helpful to think of the hierarchy of authority. At the top is the US Constitution. Next is the Wisconsin Constitution, then Wisconsin statutes that directly establish and limit the authority of cities to establish ordinances like zoning and other aspects of development like stormwater management, water and sewer infrastructure and the application of building codes. Wisconsin statutes and Madison ordinances are laws and must stand up to tests of constitutionality. Covenants are contracts among the parties to the covenants and not laws. The types of covenants that are involved in development are established in a separate recorded document with the County Recorder. Unless they have an expiration date, declared covenants stay with a property perpetually through subsequent sales and are binding on each successive homeowner. It is an American tradition to allow private contracts like covenants as much discretion as possible to the extent that they do not violate federal and state constitutionality or state statutes and local ordinances.

Q. How are Zoning Ordinances Enforced?

A. Zoning and most other development related ordinances are enforced by Madison's Building Inspection Division (“BI"), which is part of the Planning, Community, and Economic Development Department. Original construction and subsequent alterations require a building permit, and BI issues the permit pursuant to all of the zoning requirements and other land use conditions. BI doesn't issue a certificate of occupancy until its inspectors are satisfied that all conditions are met. If it is later discovered that work or modifications do not meet requirements, BI can impose fines and order removal or correction of the non-conforming work.

Q. How are Covenants Enforced?

A. Covenants are enforced by the private parties to the contract. The covenants may establish a process or entity that manages enforcement. The typical approach is to establish an architectural committee and/or covenants committee, which may be part of a homeowners association (“HOA"). HOA's tend to focus on informing members and encourage conformance so that enforcement actions are unnecessary. If a member violates a covenant the first step is usually notification and urging a fix or removal of the nonconformance. If that fails, neighbors or the HOA can bring suit in a court to enforce compliance. The court may or may not issue a judgement in favor of the HOA. Obviously, it's a process that can be expensive.

Q. Did Building Inspection Enforce the Covenants for PD's?

A. No. There are neighborhood covenants in existence for some PD's and for some conventional zones. In both cases, the City is not a legally defined party to the covenants and not the enforcer. To be accurate, under some PD's (including Wexford Village), the city facilitated enforcement by requiring approval of permit plans by the architectural committee established by the PD. As noted earlier in this blog, the declared covenants may contain provisions beyond those aspects involved in a building permit. For instance, Madison does not require a permit for residential fence installations. If a homeowner installs a 4 foot fence despite a maximum 3 foot height covenant, it's the HOA that would enforce the covenant.

Q. Will Rezoning Eliminate the Covenants Established with a PD?

A. No. The declaration of covenants is a separate recorded document and remains in force.

Q. Will an HOA established with a PD still be able to collect dues?

A. Yes. The dues requirements are established in the declaration of covenants, and the HOA remains empowered to enforce them, including filing a lien for nonpayment.

Q. Will rezoning expropriate the common areas and amenities owned by and maintained by an HOA?

A. No. 

Q. Will rezoning eliminate existing easements or public right-of-way conditions?

A. No Easements, etc. remain independently recorded property conditions.

Q. Will rezoning allow a developer to build a 10-story apartment building in my back yard?

A. I only repeat this seemingly absurd question here because it is one of the items of misinformation that is being circulated. The SR-C3 zone proposed for Wexford Villate and TR-C2 zone proposed for Rough Lee Way limit single-family homes and duplexes to 2 stories and a maximum height of 35 feet. Furthermore, the underlying Generalized Future Land Use (GFLU) for all these properties in Madison's Comprehensive Plan is low-rise residential and, per state statute, rezoning to medium or high density would first require a difficult amendment to the comprehensive plan. 

Q. Does it make any sense to have an architectural and/or covenants committee after rezoning?

A. It might. Building Inspection already advises permit applicants to check whether there are any covenants for the property. Remember that covenants already exist for both PD's and conventionally-zoned neighborhoods. The state of Wisconsin eliminated penalties for realtors and title companies that fail to disclose covenants to new homeowners.  HOA's and their committees may need to “up their game" a little via welcome committees and architectural committees to be sure that new homeowners are aware of covenants and what's involved. Architectural committees could still consult with homeowners prior to filing a permit application. 

Q. I'm a homeowner in a rezoned PD. Can I add an ADU for my mom?

A.  That depends on whether there are recorded covenants prohibiting such structures. If they are not prohibited by covenant, you or your contractor can apply for a building permit for an ADU.

Q. I want that ADU, can I get the covenant deleted?

A. Possibly. Typically, the recorded declaration of covenants includes provisions for amending the declaration. For instance, the several recorded PD's within Wexford Village have a provision that the declaration can be amended, if homeowners representing fifty percent of the current appraised value within the PD agree to the change. Check with your homeowners association on the process. The HOA may have a specific procedure or relevant bylaw on drafting and recording the amendment.

Q. Will I be able to take advantage of the new zoning provisions for subdividing deep lots or creating a cottage court?

A. It appears that few or none of the PD's in District 19 have lots that meet the requirements for subdividing deep lots or creating a cottage court.

Q. Can an individual homeowner or the residents of a specific PD opt out of the rezoning process?

A. It's possible, albeit unlikely. The ordinance amendment that will go to the Plan Commission and the Common Council will cover all existing single-family and duplex PD's. In theory, a Plan Commissioner or Alder could put forth an amendment to exclude a particular property or specific PD. In practice, the likelihood that there would be sufficient votes to approve such an exclusion may be quite small.

Q. I love my neighborhood, its amenities, its look and vibe. Won't those intangibles created by the PD evaporate eventually with the rezoning?

A. That's a great question. Maybe in this current environment of government distrust at every level and across the political spectrum, we wonder if there is some hidden agenda to this rezoning initiative. I've been on the Wexford Village board for a dozen years, and my volunteer contribution includes managing the fertilizing, mowing, plowing, and path light maintenance. To me, what makes Wexford Village a great place are the big common spaces, the lighted paths, Wexford Park and its woods, the restored natural area in Wexford Prairie, the quiet streets and cul-de-sacs, and the public events sponsored by the Wexford Village Homes Association. Maybe some of the covenants help create that sense of place as well. Since none of these things will disappear with the rezoning, it seems to me that the intangibles created with the initial PD will persist. But sustaining these intangibles requires hours of volunteer work. As those of us on the board know, the real vulnerability of a neighborhood is whether there will continue to be interested and engaged neighbors who pick up the baton as older volunteers fall away.