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District 3

Alder Erik Paulson

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Alder Erik Paulson

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Council Office

Common Council Office:
210 Martin Luther King, Jr. Blvd
Room 417
Madison, WI 53703
Phone: (608) 266-4071
Fax: (608) 267-8669
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Alder Paulson’s Updates

Transit-Oriented Development Overlay Districts: why I support including historic districts

January 16, 2023 8:26 PM

The Common Council will be taking up the Transit-Oriented Development Overlay District on Tuesday. This is more than just changes to zoning in historic districts, but is a larger package of reforms that will encourage more people and activity at places accessible via mass transit. (It's also a mouthful of a name, so from here on out I will call it "TOD".) I haven't written much about it, because the 3rd District is one of the small number of alder districts that don't include any of the overlay district, but in the past few days the Council has been getting a lot of feedback so I wanted to share a few thoughts. 

This post is also motivated because Paul Fanlund, the publisher of the Cap Times, wrote a real clunker of an opinion column today that included a lot of odd assertions, and I think some of the email the Council's been getting is because of his piece. I'm going to keep this post to factual items that Fanlund got wrong.

To jump to the punchline I support TOD with the inclusion of local and national historic districts, which is what is coming before the Council on Tuesday night. If anyone on the Council offers an amendment to remove those districts, I plan to vote against the amendment. However, if an amendment to remove the historic districts from TOD succeeds, I will still vote to support the resulting TOD plan, the perfect is not the enemy of the good. I hope that the rest of the Council will do the same. 

Also, just to clarify: Transit-Oriented Development (TOD) and Bus Rapid Transit (BRT) are separate issues and projects. The TOD Overlay covers more than just BRT routes, for example, much of Monroe Street and Atwood Ave are part of the TOD district and are not on the upcoming BRT route. The downtown area is also not included in the TOD district, because all of the changes that TOD would bring are already in place for the downtown. 

Historic Districts in the Overlay District: The hot-button issue

The current big bone of contention, and what has really animated the most opposition to the TOD overlay district in the past few days, is that the TOD district will include parts of the University Hill Farms National Historic District, including parts of it that are currently zoned for single family homes only. Under TOD, single family lots will be permitted to be duplexes. We have been hearing an earful against TOD, mostly-but-not-entirely from Hill Farm residents. (We've also been hearing an earful from folks from around the City in support of TOD.) There has been feedback on other parts of TOD too, of course, but nothing so much as the inclusion of Hill Farms in particular. 

Actually, the big change for "single family home" lots in the TOD (in Hill Farms and in many other parts of the City) is that you will be able to have three units instead of two units on your lot. Already In Madison, since October of 2021, it's been legal to build an "accessory dwelling unit" (an 'ADU') without needing special zoning permission. You still have to get building permits and follow all of the other codes, but now it's no different than just rebuilding your deck. An ADU can be a separate structure or an apartment "carved out" of an existing structure. ADUs are sometimes called 'Granny Flats' because one common use for them is to convert a garage or a basement into an apartment for relatives so you can live next to your parents or children but still have your own living space. So in a sense, Madison already doesn't really have 'single family zoning' anymore. (One thing worth mentioning: to have an ADU under the streamlined rules in Madison, the property owner must live in either the main structure or the ADU)

Hill Farms is a National Historic District, which is different from a Local Historic District. Changes to buildings in a Local Historic District go to the Landmarks Commission for a 'Certificate of Appropriateness' and are protected by City ordinances. This includes building ADUs, so if you want to build a Granny Flat in a local historic district, you do still need permission to do so there. A National Historic District has no such city protection and any change to a building in a National Historic District is treated the same as a change to any other building in the city.  (The main advantage of a National Historic District is the availability of tax credits to property owners help with preservation, though I don't know how hard those credits are to get and how many, if any, Hill Farms residents get such credits)

So might any changes from adding ADUs mean Hill Farms is in danger of no longer qualifying as a "National Historic District"? No, because while there's no city protection, all of the lots in Hill Farms have deed restrictions that require the Hill Farms Architecture Review Committee to sign off on any changes a property owner wants to make. That way, Hill Farms can protect by themselves the aspects that make Hill Farms continue to be "historic" as well as just maintain any aesthetic designs of the neighborhood that owners bought into, just like other neighborhoods with HOAs. So while zoing permits an ADU in Hill Farms, unless Hill Farms signs off on it, a Hill Farms property owner can't just build an ADU if it would trigger a review, which I suspect most ADUs would. 

That brings us to an important point with TOD and single-family homes. TOD does not require duplexes in place of single family homes, you can still have single family homes in a TOD. There is no requirement to remodel a single family home into a duplex or tear down a single family home. Madison is sometimes a punching bag for the rest of the State, but the communists are not in power and Comrade Kaprugina is not taking over Dr. Zhivago's house. 

So does TOD change anything for Hill Farms? Honestly, I don't think so. The Hill Farms Architecture Review Committee would still be empowered to look at any changes, such as remodeling a house into a duplex, or replacing a house that burned down with a new duplex, or someone buying and tearing down an existing house and replacing it with a duplex or even a single family house that's just too different than what was there before.

So why include Hill Farms in the TOD? Here are two reasons. First, I think it's entirely possible to build or remodel a duplex in Hill Farms and still be consistent with the historic characteristics of Hill Farms. If someone brings a proposal forward for a duplex and the Hill Farms Architecture Review Committee agrees that it's consistent, I want the zoning to be already in place to permit it. Second, there are ways that property owners can agree to terminate the provisions of the deed restrictions, and should they choose to do that, I want the TOD zoning to be in place. But those deed restrictions are a private contract matter between the property owners in Hill Farms.

Note that these are basically the same reasons that I support including Local Historic Districts in TOD. I trust that our Landmarks Commission will do its due diligence in making sure that any changes in a local historic district are consistent with the district, ideally in a way that makes it possible for more people to live near and have access to public transit. Where TOD makes that easier and makes what is built in the area better for transit, I am in support.

Previous Committee Discussions about TOD Overlay

So now that we've put to rest worries about any risk to Hill Farms losing its historic designation or negative impacts on the "appropriateness" of changes to local historic districts from TOD, I wanted to touch briefly on the process the TOD ordinances are taking. There's been a fair amount of suggestion, including in Fanlund's opinion column, that TOD is using some kind of a different process that is less transparent than normal city legislation. That's really not true. Let's recap a bit, because many of the timelines for TOD I've seen are not correct. 

Having only been on the Council since May of 2022, I can't tell you the full history of TOD, but the idea has been moving through discussions in the City for years. In June of 2022, at what may have been my first meeting with the Plan Commission ( ) , we had a long discussion-only session on TOD including some discussion and the opportunity to ask questions about historic districts in TOD. The point of that meeting was to give the planning staff early feedback and to ask the planning staff on where the Plan Commission wanted more information, and getting more information about historic districts was part of that request to the planning staff. In June, several members of the Plan Commission indicated that their preference was to include national historic districts in the TOD, though because it was a discussion only item there were no formal vote on the plan. 

The TOD overlay district was back at the Plan Commission for more discussion at an August meeting of the Plan Commission ( ), this time with much more explicit discussion about including historic districts. Again, this wasn't a meeting where the Commission voted on any parts of TOD, it was purely a discussion for staff to present options and to get feedback from the commission, and for the commission and guest alders to ask questions. At that point the TOD legislative language was still being written. As part of the discussion, Plan commissioners expressed different opinions about whether or not historic districts should be included in TOD. Many of us (myself included) said that historic districts should be included, but again, we were not formally voting on it. My own request to staff in August was to include historic districts, but to write the legislative language such that the historic districts could be removed without requiring major rewrites, in case that was the way the Council wanted to go. 

When legislative language was completed, it did not include historic districts in the TOD. Legislation in Madison typically is introduced with no debate at a council meeting and sent to committees for discussion and improvement. For TOD, the draft ordinance went to the Transportation Planning and Policy Board (TPPB) and the Plan Commission. I am the member of the Plan Commission who serves on the TPPB, so I saw this legislation twice. This was the first time for a formal vote on TOD by a committee, and both committees discussed the policy and voted to recommend a version of the ordinance that included historic districts. This passed unanimously at the Transportation Planning and Policy Board, and 6-1 at the Plan Commission. That version, as recommended by both the TPPB and Plan Commission, is what the sponsors of the ordinance are moving forward for final approval by the Council.

Wrapping up and moving forward

Moving forward towards Tuesday night, I expect that we'll hear testimony and continue to get email feedback from residents both for and against TOD, especially around the inclusion of historic districts. If your feedback is in opposition to the inclusion of historic districts, especially for Hill Farms, something that would be helpful for me and possibly other alders would be to better understand specifically how TOD will affect your neighborhood. Fanlund wrote that he  was "...concerned about the single-family character of our neighborhood" but I and I suspect other alders are unclear how allowing duplexes will change the character of a neighborhood. Getting to the core of that problem is what I'll be looking for tomorrow.


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