From: Stern, Andrew Sent: Tuesday, January 16, 2024 11:49 AM To: Elmer, Linda Subject: FW: File #231385 & File #231388 - Proposed West Wisconsin Avenue Historic District Linda, Can you add this to the file. Procedural concerns from the property owner’s attorney. Thanks, Andrew Stern, Senior Planner Historic Preservation Commission City of Milwaukee 414-286-5722 Andrew.Stern@Milwaukee.gov From: Richard W. Donner Sent: Friday, January 12, 2024 10:00 AM To: Stern, Andrew ; Farris, Todd Cc: jagoldberger@nslalaw.com; Carson, Alexander R. Subject: RE: File #231385 & File #231388 - Proposed West Wisconsin Avenue Historic District Andrew – Thanks for your quick response. I have added City Attorney Todd Farris to this email as there are due process issues at play here that directly impact my client’s private property rights and my client continues to have several concerns that the required processes for consideration of a historic designation involving its properties are not being followed. In this circumstance, in which the nomination is being applied for by a resident of the City without prior notice or consultation with the property owner, it is particularly important for legally required procedures to be followed. We note the following: 1. HPC By-Laws state that when processing an application for historic designation “the Commission shall vote” on how to proceed with the application (emphasis added). Per the By-Laws, HPC can vote to (i) schedule a public hearing and recommend staff prepare preservation guidelines, (ii) ask the applicant for additional information, (iii) table the application, or (iv) deny the application. (See Procedures, Section 6 Historic Designation Applications, Sub-Section 2 Commission Review of Applications, Paragraph A). As such, HPC staff cannot unilaterally schedule a public hearing on an application for historic designation or begin preparing preservation guidelines in furtherance of that application without a Commission vote directing them to do so. To our knowledge, this review and vote (in open session, per public meeting requirements) has not happened and both public hearings need to be tabled until the correct procedures have been followed. 2. Per City of Milwaukee Code Section 320-21-13-d, the standard for granting a temporary historic designation is for the Commission to determine there is “a substantial likelihood that the commission will recommend historic designation of the nominated structure, site or district to the common council following full consideration of the application for permanent designation.” Based on this standard, it is logically inconsistent for HPC to consider the temporary historic designation petition without first making its initial determination on how to proceed with the historic site designation application. Akin to putting the cart before the horse. Per your email, HPC Staff has not completed its written recommendation to the Commission. The Commission has not made a determination that there should be a public hearing on the matter. After reviewing the application and HPC staff’s recommendation, the Commission must vote on one of the 4 options provided in the By-Laws. At this point, the Commission may determine that the subject properties are not worthy of designation and deny the application without the need for a public hearing. In addition, the proposed permanent designation is for a historic district. When the designation of a historic district is being considered, Milwaukee Code Section 320-21-9-c requires the Commission to “consider and report in its findings the impact of the designation on low-and- moderate income housing within the district.” To our knowledge, HPC has not done any research or investigation into the impacts of the designation on low to low-and-moderate income housing within the proposed district. Without initiating such research, the Commission is without information it is required by the Code to consider and it is therefore impossible for the Commission to reasonably determine there is a “substantial likelihood” that the permanent historic district designation will be granted. Finally, under Wisconsin law, to the extent an ordinance may be ambiguous, the ordinance must be construed in a manner that allows for the freer use of property. See, e.g., Cohen v. Dane County Board of Adjustment, 74 Wis.2d 87, 92, 246 N.W.2d 112 (1976). Any conflict between the scheduling timelines cited in your email and the procedures and standards described above must be resolved in favor of protecting my client’s private property rights. A historic designation, while a necessary and important development and planning tool, is a degradation of my client’s property rights and therefore must be carefully considered and required due process procedures followed. We respectfully request a short Zoom call before Wednesday (the date of the scheduled public hearing on the temporary designation) with HPC Staff and the City Attorney to discuss these concerns. I am generally available Today, on Monday anytime after 10 am, and all day Tuesday. Please let me know what dates/times work best for you. Thanks, Rick Richard W. Donner Reinhart Boerner Van Deuren s.c. 1000 North Water Street, Suite 1700 | Milwaukee, WI 53202 Office: 414-298-8169 | Fax: 414-298-8097 rdonner@reinhartlaw.com | vCard | reinhartlaw.com Legal Secretary: Carol M. Wirkkula | 414-298-8405 | cwirkkula@reinhartlaw.com From: Stern, Andrew Sent: Thursday, January 11, 2024 3:58 PM To: Richard W. Donner Cc: jagoldberger@nslalaw.com Subject: [EXTERNAL] RE: File #231385 & File #231388 - Proposed West Wisconsin Avenue Historic District Richard, Please see answers to your questions below: Can you please (i) confirm the date staff determined the relevant applications were complete as to form, (ii) confirm such written recommendations were prepared by staff for each application, and (iii) provide the undersigned with a copy of the recommendations? The applications for temporary and permanent historic designation were deemed complete on December 27, 2023. Staff is currently writing the temporary designation report and recommendations for 3035 W. Wisconsin. A copy will be provided when it is complete. Can you please (i) clarify the basis for HPC scheduling the public hearings concerning File #231385 & File #231388 on the dates described above, and (ii) confirm what date HPC voted to schedule the public hearings concerning File #231385 & File #231388? The temporary designation public hearing must be scheduled within 20 days of receipt of a complete application is received. The public hearing for permanent designation had to be scheduled within 45 days of receipt of a complete application. Our regularly scheduled February HPC meeting could accommodate this public hearing. Can you please provide the undersigned with a copy of the Historic Designation Study Report? Staff is working on the Designation Study Report and it will be provided upon completion. If HPC has not (i) completed its initial review of the historic site designation application, (ii) voted on how it wants to proceed, and (iii) preservation guidelines have not been prepared as part of the Study Report and provided to the property owner, please clarify what basis does HPC have to take a vote on the temporary designation? Logically, if the standard required by the historic preservation code to grant a temporary designation is a “substantial likelihood” HPC will recommend historic designation for the proposed West Wisconsin Avenue Historic District, how can HPC consider the temporary historic designation petition without first making its initial determination on how to proceed with the historic site designation application? HPC will review and vote on the Study Report and preservation guidelines at the January 17th meeting. The study report and guidelines will be provided to HPC for their review prior to the meeting. Thanks, Andrew Stern, Senior Planner Historic Preservation Commission City of Milwaukee 414-286-5722 Andrew.Stern@Milwaukee.gov From: Historic Preservation Commission Sent: Thursday, January 11, 2024 8:13 AM To: Stern, Andrew Subject: FW: File #231385 & File #231388 - Proposed West Wisconsin Avenue Historic District From: Richard W. Donner Sent: Wednesday, January 10, 2024 4:26 PM To: Historic Preservation Commission Cc: Joe Goldberger Subject: RE: File #231385 & File #231388 - Proposed West Wisconsin Avenue Historic District Dear HPC – A clarification on the below email, we represent Berrada Properties 111, LLC (the owner of 3035 West Wisconsin Avenue) and 3017 Highland Ave, LLC (the owner of 3133 West Wisconsin Avenue). We do not represent Joes Properties In KC LLC. I apologize for the confusion. Please let me know if you have any questions. Thank you, Richard W. Donner Reinhart Boerner Van Deuren s.c. 1000 North Water Street, Suite 1700 | Milwaukee, WI 53202 Office: 414-298-8169 | Fax: 414-298-8097 rdonner@reinhartlaw.com | vCard | reinhartlaw.com Legal Secretary: Carol M. Wirkkula | 414-298-8405 | cwirkkula@reinhartlaw.com From: Richard W. Donner Sent: Wednesday, January 10, 2024 4:12 PM To: hpc@milwaukee.gov Cc: Joe Goldberger Subject: File #231385 & File #231388 - Proposed West Wisconsin Avenue Historic District Dear HPC: This firm represents Berrada Properties 111, LLC (the owner of 3035 West Wisconsin Avenue) and Joes Properties In KC LLC (the owner of 3127 West Wisconsin Avenue) with regards to the above-captioned matters. It is our understanding that the following public hearings have been scheduled before HPC: A. On January 17, 2024, a public hearing concerning File #231385 relating to a temporary historic designation petition submitted for 3035 West Wisconsin Avenue; and B. On February 5, 2024 a public hearing concerning File #231388 relating to a historic site designation application for the proposed West Wisconsin Avenue Historic District. Based on the foregoing, we respectfully request the following information: 1. Pursuant to the HPC By-Laws (see Procedures, Section 6 Historic Designation Applications, Sub- Section 1 Nominations Procedures, Paragraph A) “Staff shall review all applications for historic designation for accuracy and completeness and prepare a written recommendation for the Commission as to whether or not the application appears to satisfy the criteria for designation.” Can you please (i) confirm the date staff determined the relevant applications were complete as to form, (ii) confirm such written recommendations were prepared by staff for each application, and (iii) provide the undersigned with a copy of the recommendations? 2. Pursuant to the HPC By-Laws (see Procedures, Section 6 Historic Designation Applications, Sub- Section 2 Commission Review of Applications, Paragraph A) HPC shall review the application without public participation and “shall vote to either: (1) Recommend that the staff schedule the site for a public hearing and prepare preservation guidelines; (2) Request that the petitioner amend the request or provide additional information; or (3) Table the petition for consideration at a later date; or (4) Deny the petition. Written notification of the action of the Commission shall be transmitted to the applicant and owner.” Based on the foregoing, it is our understanding that in order to schedule a public hearing HPC must complete its review of the application, vote (in open session) to instruct staff to schedule said public hearing, and provide written notice to the property owner of HPC’s actions. As of the date of this email, we have not received written notice of HPC completing its review of either application and voting on how it wants to proceed. Can you please (i) clarify the basis for HPC scheduling the public hearings concerning File #231385 & File #231388 on the dates described above, and (ii) confirm what date HPC voted to schedule the public hearings concerning File #231385 & File #231388? 3. Pursuant to the HPC By-Laws (see Procedures, Section 6 Historic Designation Applications, Sub- Section 2 Commission Review of Applications, Paragraph B) if a public hearing is scheduled, the property owner shall receive written notice of the public hearing and a copy of the related Historic Designation Study Report. As of the date of this email, we have not received a copy of the Historic Designation Study Report. Can you please provide the undersigned with a copy of the Historic Designation Study Report? 4. City of Milwaukee Code Section 320-21-13-d provides in relevant part “the commission shall grant temporary designation if the commission finds that there is a substantial likelihood that the commission will recommend historic designation of the nominated structure, site or district to the common council following full consideration of the application for permanent designation.” If HPC has not (i) completed its initial review of the historic site designation application, (ii) voted on how it wants to proceed, and (iii) preservation guidelines have not been prepared as part of the Study Report and provided to the property owner, please clarify what basis does HPC have to take a vote on the temporary designation? Logically, if the standard required by the historic preservation code to grant a temporary designation is a “substantial likelihood” HPC will recommend historic designation for the proposed West Wisconsin Avenue Historic District, how can HPC consider the temporary historic designation petition without first making its initial determination on how to proceed with the historic site designation application? Thank you for your time and assistance in this matter. Please contact the undersigned with any questions. Richard W. Donner Reinhart Boerner Van Deuren s.c. 1000 North Water Street, Suite 1700 | Milwaukee, WI 53202 Office: 414-298-8169 | Fax: 414-298-8097 rdonner@reinhartlaw.com | vCard | reinhartlaw.com Legal Secretary: Carol M. Wirkkula | 414-298-8405 | cwirkkula@reinhartlaw.com This e-mail and any attachments may contain privileged or confidential information. This e-mail is intended solely for the use of the individual or entity to which it is addressed. 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