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Amid development boom, Madison may change rules to approve rezoning property

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Madison will soon consider a proposed ordinance that would change the rules for City Council votes on rezonings.

As development booms in Madison, the city may soon change rules to approve rezonings that are part of some big housing and commercial projects.

Three City Council members have offered an ordinance that would remove a provision that now allows immediate neighbors to a redevelopment to file a “protest petition” that forces council approval for a rezoning from a simple majority vote to a supermajority of 15 of 20 members.

But the ordinance, proposed by Alds. Grant Foster, 15th District, Yannette Figueroa Cole, 10th District, and Patrick Heck, 2nd District, would also change the council threshold for approval of all rezonings from the simple majority to a two-thirds majority, which would be 14 of 20 members or two-thirds of those present and voting. That would give a council minority the power to block any rezoning.

An alternative proposed by Ald. Juliana Bennett, 8th District, would eliminate the protest petition but keep the simple majority vote to approve all rezonings.

The city’s Plan Commission is scheduled to consider the proposals on Monday, with council consideration possible on June 7.

A Planning Division staff report supports removal of the protest petition but recommends “careful consideration” of the direct and indirect impacts of increasing the council vote threshold for all rezonings. Staff supports the alternative that would keep the simple majority.

State law change

A rezoning is required only if a property’s existing zoning does not allow a proposed development, and since adoption of the city’s latest zoning code in 2013, many projects do not need rezonings and only require a conditional use, city principal planner Kevin Firchow said. The city, he said, gets about 35 rezoning requests each year.

The proposal to remove the city’s protest petition process follows a change in state law in 2019 that says municipalities are no longer required to include such provisions in local zoning codes, the staff report says. Historically, protest petitions were a tool for landowners to have more power and became a standard model in zoning codes adopted in the 1920s and 1930s across the United States, it says.

Currently, in Madison, when a rezoning is under review, an ordinance allows for 20% of property owners or registered voters within 100 feet of the subject property to file a protest petition. It provides a way for a small number of people in opposition to a particular rezoning to organize and make it more difficult for the rezoning to proceed.

Since the city’s zoning code was rewritten in 2013, 13 protest petitions have been filed. Most of the petitions have been deemed valid, but none have ultimately impacted an outcome.

“It is clear to us that the petitions didn’t accomplish anything in those situation,” Heck said. “Without a petition process, those who oppose a Plan Commission-approved zoning map amendment can still give public input to City when they consider Plan Commission’s action, and, as we’ve seen, the result would very likely be the same.

“I am particularly motivated to remove that threshold because as it stands, it can allow five alders to effectively control the fate of zoning map amendments, which seems quite undemocratic,” he said. “It also will in no way reduce residents’ opportunities to work with their alders and neighborhood associations as zoning map amendments come forth.”

A higher threshold

As for changing to a two-thirds majority for all rezonings, data shows that with very few exceptions, the outcome of most rezonings recently requested would not have changed if a two-thirds majority vote would have been required, the staff report says.

Still, very few items require two-thirds or three-fourths majority votes by the City Council in order to pass, the report says. The proposal would elevate the consideration of rezonings nearly to that of a budget amendment, which requires a three-fourths vote, it says.

“There are some concerns about how this higher vote threshold might impact future rezonings that are in the public interest and consistent with recommendations in the Comprehensive Plan,” it says.

“After removing the protest petition process, it could be said that a higher bar should be required of zoning map amendments since they can indeed have large impacts on nearby residents,” Heck said. “We submitted our proposed ordinance change with a higher bar of two-thirds majority for that reason, but I can also see why Ald. Bennett’s version with a simple majority threshold required is a solid approach, too. Even the two-thirds majority could be characterized as undemocratic because six, rather than five, alders can still hold things up at times.”

Mayor Satya Rhodes-Conway could not be reached for comment.

Smart Growth Greater Madison, which represents developers, supports repeal of the protest petition but strongly opposes increasing the threshold for all rezonings to a two-third council vote.

The latter change “will increase the number of instances where the Plan Commission recommends a rezoning consistent with the Comprehensive Plan and then the City Council does not follow the Plan Commission’s recommendation because a minority of the City Council, for whatever reason, votes no,” Smart Growth executive director Bill Connors wrote to the commission.

Progressive communities and states have repealed protest petition processes and supermajority votes for rezonings because both provisions empower privileged, ‘not in my back yard,’ residents on some occasions to stop changes in neighborhoods, which are often multi-family housing developments, Connors said.

Although there are few instances when a two-thirds majority requirement would have changed a result, “past results might not be a good predictor of the future, when the composition of the City Council is constantly changing,” he said. “It would be better not to adopt the (original) proposed ordinance as a whole if it contains both provisions.”

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