The public record related to the Downer Ave. parking garage continues to grow, and so does the stench about the way the Department of City Development handled the whole deal.
The Historic Preservation Committee is meeting tomorrow to discuss the matter, and emails are flying among activists and preservationists. If these people trusted DCD to any degree before, they don't now. DCD broke faith with the public and is going to have to go a long way to fix it.
My heavens, what were the folks at DCD thinking? Who was pushing to get the deal done even if laws had to be trampled? And what is being done to assure that this kind high-handed sneakiness doesn't happen again?
DCD, having been slapped pretty hard by Circuit Judge Elsa Lamelas for breaking the law and misleading a Common Council committee about the parking garage plans, has now put quite a bit of background information about the matter online, including Lamelas' decision.
Unfortunately, DCD still is in the minimization mode. An "summary" of the disaster by DCD Deputy Commissioner Martha Brown says only that Lamelas "expressed concern that the subcommittee meetings held in May and June were not publicly noticed and not open to the public."
Hey, Lamelas compared the city's conduct to that of a "totalitarian state." There was a lot more than an open meetings violation that she was concerned about.
What did DCD do wrong? Well, for starters, the Downer Ave. parking garage was proposed for a historic district. Said the judge in her ruling:
Given these circumstances...the Wisconsin Statutes required good-faith negotiation between the city and the State Historic Preservation Officer. This did not take place. Not only did the city fail to notify the State Historical' Society, even after Mr. Chip Brown, the Third, wrote to the city, advising the city of its obligation under state law, the city ignored the letter.
The State Historical has no enforcement authority, the judge noted, adding: I am troubled and discouraged that the city simply ignored what is nevertheless its statutory obligation to protect historic districts, properties, and the public trust. Our state's largest city is where we should turn to for civic lessons in statutory compliance, not noncompliance.
Ouch. But that was only the beginning.
The garage plan got altered a bit, and the judge said the alterations were minor and neighbors did not have to be notified. Then she lit into DCD again:
But the representations made to the Zoning and Neighborhood Commission (actually a Common Council committee) regarding the Historic Preservation Subcommittee are disturbing. I have considered that public bodies most likely would not be shocked to discover that not all persons who come before them are truthful. I imagine that they, like judges, have discovered that some persons who come before them are less than truthful.
The problem here has to do with the fact that the information regarding the position of the Historic Preservation Subcommittee came from a city staff person whose word presumably the Zoning and Neighborhood Commission was entitled to rely on and did rely on. The apparent misinformation standing alone might not suffice to undermine the action of the Zoning and Neighborhood Commission. My concern is that it appears related to a desire to control or perhaps silence the Historic Preservation Subcommittee.
City staff trying to "control or perhaps silence" an HPC committee? This is monumentally serious stuff. The city needs knowledgeable people to volunteer to serve on its committees and commissions. Squashing their ideas isn't a good way to attract them.
The subcommittee was appointed to work with the developer on some details of the plans for the five-story parking garage at 2574 N. Downer Ave.
And yes, there is more from the judge. That little thing called the Open Meetings Law got in the way of DCD's desires. Lamelas again:
These were subcommittee meetings that were closed to the public for no apparent reason and which at first blush appear to be violations of the Open Meetings Law. Once again, that is not an issue before me; and, therefore, I make no final, reach no final conclusions. But my reading of the statute and my understanding of the record as it appears before me has revealed no apparent reason to justify the closing of those meetings; no subsection of the statute seems immediately apparent. While the city contended that the commissioners are not conversant with the requirements of the Open Meetings Law, it turned out that one of the commissioners had raised that very question with city staff and that the concern apparently went unanswered.
Ordinarily we expect the governmental entity in question to provide this sort of information, regarding the law, to lay people appointed to serve the community in commissions such as the historic/ the city's Historical Preservation Committee, and forgive me if I'm misstating the name of the committee. I think you know what I'm talking about. I learned that there was no response to the commissioner who raised the question. I also learned during the course of the hearing that the city attorney's office has an expert in the area. And yet the city permitted closed meetings to go forward....
And when the subcommittee did meet, city staff made sure the minutes read the way city staff wanted them to read -- one commissioner sought to make significant corrections, but staff didn't feel like it.
Not only did the city conduct these meetings in closed session, it then took it upon itself to record meetings incompletely. When one of the commissioners objected over the omission of certain material covered during one of these meetings and attempted to supplement the record, the request was ignored. City staff did not trouble itself to inform the commissioner that the record would not be supplemented. The explanation given for this conduct is that the subcommittee had been discussing matters outside of its jurisdiction. It is a matter so fundamental that I am amazed to have to reference it that the purpose of minutes is to record. If minutes were scrubbed by staff to include only those matters deemed appropriate by the writer, there would be no value to minutes at all.
Isn't that what they do in totalitarian states?
The judge summarized things nicely:
So, with respect to the subcommittee, the public was denied access at the time of the meetings, the record was manipulated, and the city sought to suppress the testimony of those who might have clarified just what transpired.
Other than that, it was great!
Then, apparently, the manipulations rolled on.
The city then sought to have the Zoning and Neighborhood Commission believe that the modifications to the DPD (Detailed Planned Development) were the work of the Historical Society Subcommittee, or at least that's one of the interpretations to be given to the transcript which I think is Exhibit 14. This course of conduct seems extraordinary, so extraordinary that it raises questions about the manner in which Milwaukee made the decisions at issue here. I am concerned that the Zoning and Neighborhood Commission was deprived of accurate information. Whether or not the subcommittee was acting outside of its jurisdiction, the fact is that it appears that the Zoning and Neighborhood Commission was misinformed regarding the commission's subcommittee, the Historic Preservation Subcommittee's position....
The judge concluded:
I want to close with another quote from Holmes, and it's from the same case that I cited earlier. It is this: "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change."
I understand that the city had a strong desire to develop Downer Avenue and that in its mind the development would improve the public condition. But it, the city, should bear in mind that its failure to negotiate with the state and to deprive -- and to provide the public with access to information discussed at meetings does seem to reflect an inclination to the shorter cut.
The city's shortcut slashed through public trust, shredding it pretty badly. Maybe Monday's meeting will show us if the agency is willing to start repairing what it so badly damaged in its scramble for a desired outcome.